Gatore v. U.S. Dep't of Homeland Sec.

Citation: 292 F. Supp. 3d 486Docket: Civil Action No. 15–459 (RBW)

Court: Court of Appeals for the D.C. Circuit; January 3, 2018; Federal Appellate Court

Lead Opinion SummaryLead Opinion Original

EnglishEspañolSimplified EnglishEspañol Fácil

The plaintiffs, represented by Catholic Charities, filed a civil lawsuit against the United States Department of Homeland Security under the Freedom of Information Act (FOIA), seeking access to asylum assessments related to their individual asylum applications. The defendant, in response, filed a Renewed Motion for Summary Judgment, asserting that it properly withheld the assessments in their entirety under FOIA Exemption 5, specifically citing the deliberative process privilege. The defendant's position was supported by a declaration from Jill A. Eggleston, stating that the factual portions of the assessments could not be segregated from their context. Initially, the defendant had released some documents but withheld the assessments entirely, leading the plaintiffs to claim that the initial paragraphs of each assessment were reasonably segregable and should be disclosed. The Court, having considered the submissions from both parties, determined that an in camera review of the assessments was necessary to address the motion for summary judgment and previously denied the defendant's first summary judgment motion due to concerns regarding the separability of the assessments.

The Eggleston Declaration addresses the segregability of assessments in a broad manner rather than providing specific details for each plaintiff's case, limiting the Court's ability to independently evaluate the agency's segregability determinations for individual requests under 5 U.S.C. § 552(a)(4)(B). The defendant's claim of a "line-by-line examination" of assessments is called into question by its apparent policy of withholding entire assessments regardless of content. Previous cases, Gosen and Abtew, involved similar assessments and resulted in orders for in camera reviews, revealing that certain portions were indeed reasonably segregable. The Court finds that some factual material in the assessments, particularly initial factual summaries, do not reflect deliberative processes and can be segregated. Consequently, the Court required the defendant to provide a revised Vaughn index or declaration to reassess segregability for each plaintiff’s assessment. On May 27, 2016, the defendant submitted a supplemental declaration asserting that all assessments underwent two levels of segregability review, concluding that no portions could be reasonably segregated from their context and thus must remain undisclosed.

On March 14, 2017, the defendant released limited portions of seven assessments to individual plaintiffs, including the first paragraph for five plaintiffs and the first two paragraphs for two others. A subsequent declaration from Eggleston confirmed that USCIS decided to disclose limited factual information, specifically biographical details from the opening paragraphs. On June 9, 2017, the defendant released the first three paragraphs of an assessment for a different plaintiff, Veronica Carolina Lemus Miranda, with another declaration clarifying the decision to release introductory information from that assessment.

The legal discussion centers on whether the factual information in the assessments can be reasonably segregated and disclosed under the deliberative process privilege of Exemption 5. Plaintiffs argue that the defendant has not released all reasonably segregable information, specifically advocating for the disclosure of the first three parts of each assessment, which include vital biographical details and claims. The defendant contends that it has fulfilled its obligation by releasing biographical information and that its supplemental declarations address the Court’s previous concerns regarding its first summary judgment motion. The Court's role under FOIA is to determine if agency records have been properly withheld, emphasizing that any reasonably segregable portion must be disclosed after exempt parts are redacted, following the principle that nonexempt portions should be made available unless they are inextricably intertwined with exempt sections.

In *Wilderness Society v. U.S. Department of Interior*, 344 F. Supp. 2d 1, 18 (D.D.C. 2004), the court emphasized that agencies must provide detailed justifications to prove that all reasonably segregable information has been disclosed, rather than relying on conclusory statements. Agencies benefit from a presumption of compliance regarding the disclosure of segregable material, which can be challenged by requesters with sufficient evidence. While factual material is generally not exempt under the deliberative process privilege, the privilege does protect factual summaries that reflect judgment regarding relevant issues. The court reviewed supplemental declarations and noted that, although the defendant had individually assessed and released certain biographical information, it could not determine whether the defendant met its obligation to disclose all reasonably segregable information. The court expressed concerns that the disclosed information was insufficient, as it represented only a small portion of potentially segregable factual details identified in previous cases, such as *Abtew* and *Gosen*, which indicated that more extensive factual material could be released. The court observed that the defendant had only disclosed limited introductory paragraphs, lacking the broader factual context that previous rulings suggested could be reasonably segregated and released.

Limited additional information regarding plaintiff Lemus Miranda's asylum application was released, but critical elements such as summaries of the plaintiff's testimony and factual content supporting the asylum claim remain undisclosed. The supplemental Eggleston declarations fail to adequately justify this withholding, lacking the necessary detail for the Court to assess whether the assessments contain additional factual paragraphs that should be released. Although each of the eight assessments is described, the descriptions are largely repetitive and fail to provide specific information about the content being withheld. For seven assessments, Eggleston describes only general sections—introduction, analysis, and conclusion/recommendation—without indicating any verbatim transcription of plaintiff information, instead noting a selective recording relevant to the asylum officer’s decision-making process. The plaintiffs argue that all assessments follow a "standard format," suggesting that the withheld factual paragraphs may be similar to those previously deemed releasable in other court decisions. The defendant's current disclosures do not provide sufficient detail to allow the Court to independently determine the segregability of the information, contrary to requirements set forth in Oglesby v. U.S. Dep't of Army, which mandates a thorough explanation of the document's nature while protecting sensitive information.

The defendant's argument to differentiate the factual material in the assessments from those in the Abtew and Gosen cases is unconvincing. The first supplemental Eggleston declaration claims that the assessments focused solely on facts relevant to the asylum officer’s evaluation, asserting proper application of Exemption 5 of FOIA. However, this interpretation of the prior cases is overly narrow, as those courts did not limit segregable material to only verbatim facts. Instead, they acknowledged the potential for summarizing and streamlining factual content. The Eggleston declaration fails to substantiate that the factual content in the current assessments differs from that in prior decisions allowing disclosure. Additionally, the supplemental declarations do not adequately differentiate between the released "biographical" information and the withheld factual information. For an agency to justify withholding similar information that has been publicly released, it must provide a sufficiently detailed Vaughn submission. Eggleston's description of the factual information lacks specificity and fails to clarify why certain factual details were disclosed in some assessments but withheld in others, providing inconsistent examples from different assessments.

The defendant has not met its burden of justifying the withholding of documents, as evidenced by previous case law requiring a clear distinction between publicly disclosed documents and those redacted. The Court finds that Eggleston's supplemental declarations lack sufficient detail for an independent evaluation of segregability, necessitating several potential actions such as in camera inspection or further affidavits. The determination to conduct an in camera review is at the discretion of the trial court, based on the need for a responsible evaluation of exemption claims. Given the defendant's repeated failures to adequately supplement its submissions and the small number of contested documents, the Court deems in camera review the most efficient resolution. Despite the principle that in camera inspections should not replace proper agency explanations, the defendant has had multiple chances to clarify its withholdings without success. Therefore, the Court concludes that an in camera review is required to assess the segregability of the documents at issue.

The Court considered several submissions in its decision-making process, including multiple declarations from Jill A. Eggleston, memoranda related to the defendant's renewed motion for summary judgment, and various statements and opposition documents from both parties. Notably, the eighth individual plaintiff, Veronica Carolina Lemus Miranda, was added to the case on February 8, 2017, via an amended complaint. Exemption 5, which protects documents that reflect governmental advisory opinions and deliberations, is referenced with regard to the disclosure of asylum officer assessments. The defendant's description of the eighth assessment contains some details about the sources of information but lacks sufficient specificity regarding the factual content as outlined in former case law. An Order will be issued that aligns with this Memorandum Opinion.