Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has raised concerns about many privilege claims made by the Department of Homeland Security pertaining to discussions at the Houston field office of Immigration and Customs Enforcement when it was forced to revise its response to a June 2010 memo from John Morton, Assistant Secretary of ICE, on national priorities for immigration enforcement. Making preliminary rulings on attorney-client communications, attorney work-product, and deliberative process, Kollar-Kotelly has provided a useful examination of elements of the privileges and what is or is not required in claiming them. The June 2010 memo indicated that ICE should prioritize immigration cases where aliens posed a danger to national security, were recent illegal entrants, or were fugitives. The memo, however, explained that it should not be construed to prohibit or discourage the apprehension, detention, or removal of other aliens unlawfully in the United States. But an August 12 memo from Gary Goldman, Chief Counsel of the Office of Chief Counsel in the Houston ICE Office, indicated that cases that did not fit within the parameters of the national priorities memo should be dismissed as a matter of prosecutorial discretion. On August 20, Morton issued another national policy memo on how to deal with removal proceedings involving aliens with applications before U.S. Citizenship and Immigration Services. The memo outlined four elements to consider in potentially dismissing removal proceedingsâ€"the alien must be the subject of an application or petition for adjustment of status, the alien must appear to be eligible for relief, the alien must present a completed application to adjust status, and the alien must be eligible for adjustment of status. When he distributed the August 20 memo from Morton, Goldman withdrew his own memos, indicating that they were superseded by Morton's new memo. On August 25, ICE's Office of the Principal Legal Advisor sent a memo to Goldman concluding that his August 12 memo was not consistent with agency policy. Goldman responded that he had already rescinded the memo. Judicial Watch requested records concerning review and possible dismissal of pending immigration cases in Houston. After Judicial Watch filed suit, DHS released 237 pages of spreadsheets, memoranda, and correspondence, releasing 46 pages in full and 191 pages in part. Judicial Watch challenged only the agency's reliance on Exemption 5 (privileges). Kollar-Kotelly dealt first with the agency's attorney-client privilege claims. She noted that the party claiming the privilege had to show they were or attempted to become a client, the person to whom the communication was made was an attorney, the communication was confidential and made for the purpose of securing legal advice, and that the privilege was claimed by the client. Kollar-Kotelly found the agency's submissions "fail to provide any basis for this Court to find that the confidentiality of the communications at issue has been maintained. True, DHS's Vaughn Index and agency declaration recite other elements of the attorney-client privilege, but they do not speak of confidentiality in connection with the information withheld from Judicial Watch, even in conclusory terms. In the final analysis, FOIA places the burden on the agency to prove the applicability of a claimed privilege, and this Court is not free to assume that communications meet the confidentiality requirement." She also pointed out that "in identifying its justification for withholding information pursuant to the attorney-client privilege, DHS's Vaughn Index simply parrots selected elements of the attorney-client privilege." She observed that "DHS's generalized and non-specific showing fails to satisfy the Court that the attorney-client privilege has been properly invoked in connection with the information withheld from Judicial Watch." However, DHS fared better when Kollar-Kotelly turned to its attorney work-product claims. Judicial Watch claimed spreadsheets were not protected by the privilege because the information was collected for the purposes of dismissing litigation, not in anticipation of litigation. Saying that the argument "lacks merit," Kollar-Kotelly indicated that "material may still be said to be prepared 'in anticipation of litigation' even when an attorney is deciding whether or not to pursue a case, including under circumstances analogous to those presented here." Judicial Watch also argued the agency had failed to show that information had not been shared with third parties. She rejected that argument as well, noting that "when it comes to the work product doctrine, disclosure to a third party constitutes a waiver when the disclosure is made under circumstances inconsistent with the maintenance of secrecy from one's adversary." Kollar-Kotelly pointed out that the agency mischaracterized Judicial Watch's argument to require a showing by the plaintiff that the information had somehow become public. Rather, Kollar-Kotelly noted, "Judicial Watch's argument is different. It is targeted to DHS's antecedent burden, as the proponent of the privilege, to establish the applicability of the work product doctrine." However, she added that "nevertheless, DHS's essential point is correct: the burden lies with Judicial Watch to establish that DHS has waived the protections of the work product doctrine. That is because, in contrast to the attorney-client privilege, the proponent of the work product doctrine does not bear the burden of proving non-waiver." She added that "despite the conjecture of its counsel, Judicial Watch does not adduce any competent evidence to support a finding that the specific information redacted from the spreadsheets was shared with third parties under circumstances inconsistent with the maintenance of secrecy." But Kollar-Kotelly expressed concern with memoranda the agency claimed was exempt as work product, "DHS's Vaughn Index simply parrots elements of the work product doctrine when identifying its justification for withholding information. . .True, DHS's separate declaration provides a little more detail, separating the memoranda and communications into eight general categories, but DHS fails to correlate these categories to specific records identified in its Vaughn Index. Even if it had, the descriptions of some of these categories are so generic that, even when they are considered alongside DHS's partial production, they do not demonstrate that the information withheld can 'fairly be said to have been prepared or obtained because of the prospect of litigation.'" Turning finally to the deliberative process claims, Kollar-Kotelly indicated that "DHS represents that the communications withheld under the deliberative process privilege are 'largely opinion,' but the agency concedes that 'they also contain some factual material selected by the authors which [is so] "inextricably intertwined" with deliberative material that its disclosure would compromise the confidentiality of deliberative information.' This empty invocation of the segregability standard, which DHS never couples with a more detailed representation relating to specific records, does not satisfy the Court that DHS has applied the correct standard." She added that "in light of these concerns about the adequacy of DHS's descriptions and its applications of the segregability standard, which at least theoretically could affect all of DHS's withholding decisions under the deliberative process privilege, the Court declines to rule on the merits of any of DHS's withholding decisions at this time. DHS shall first be afforded an opportunity to provide a more particularized evidentiary showing."
Issues: Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2011-03-23	1	COMPLAINT against UNITED STATES DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 350, receipt number 4616037428) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet)(td, ) (Entered: 03/25/2011)
2011-03-23		SUMMONS (3) Issued as to UNITED STATES DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (td, ) (Entered: 03/25/2011)
2011-03-23	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. identifying Corporate Parent NONE for JUDICIAL WATCH, INC.. (td, ) (Entered: 03/25/2011)
2011-04-05	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/28/2011. Answer due for ALL FEDERAL DEFENDANTS by 4/27/2011. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 04/05/2011)
2011-04-05	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF HOMELAND SECURITY served on 3/28/2011, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 3/28/2011. (See Docket Entry 3 to view document). (znmw, ) (Entered: 04/06/2011)
2011-04-21	5	NOTICE of Appearance by Gregory Peter Dworkowitz on behalf of UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Dworkowitz, Gregory) (Entered: 04/21/2011)
2011-04-27	6	ANSWER to 1 Complaint by UNITED STATES DEPARTMENT OF HOMELAND SECURITY.(Dworkowitz, Gregory) (Entered: 04/27/2011)
2011-04-27		MINUTE ORDER (paperless). Plaintiff filed the 1 Complaint in this action on March 23, 2011. Defendant filed its 6 Answer on April 27, 2011. The action now appears ready to proceed to the briefing of dispositive motions. Accordingly, the parties shall promptly meet and confer and, on or before Thursday, May 12, 2011, file a Joint Status Report with the Court, which shall, at a minimum, (a) propose a schedule for the briefing of dispositive motions in this action, (b) indicate whether aVaughn index will be required and, if so, propose dates for the preparation and exchange of the index, and (c) indicate whether the parties intend to use a sample of the records at issue for purposes of briefing their dispositive motions and, if so, propose a procedure for selecting and certifying the sample. Signed by Judge Colleen Kollar-Kotelly on April 27, 2011. (lcckk3) (Entered: 04/27/2011)
2011-05-12	7	STATUS REPORT Joint Status Report by JUDICIAL WATCH, INC.. (Aldrich, Jason) (Entered: 05/12/2011)
2011-05-13	8	SCHEDULING AND PROCEDURES ORDER. Upon review of the parties' 7 Joint Status Report, and in order to administer this civil action in a manner fair to the litigants and consistent with the parties' interest in completing this litigation in the shortest possible time and at the least possible cost, the parties are directed to comply with each of the directives set forth in this Order. In addition, the parties shall adhere to the following schedule: on or before Friday, May 27, 2011, at 5:00 p.m., Defendant shall produce the approximately 240 pages of records to Plaintiff as contemplated; on or before Friday, June 10, 2011, at 5:00 p.m., Plaintiff shall serve a written notice upon Defendant (i) identifying any concerns or objections it may have as to Defendant's production, and (ii) indicating whether it is requesting a Vaughn index as to Defendant's withholding decisions; on or before Friday, June 24, 2011 at 5:00 p.m., if requested by Plaintiff in accordance with the foregoing paragraph, Defendant shall serve a Vaughn index upon Plaintiff; on or before Friday, July 1, 2011, at 5:00 p.m., the parties shall file a Joint Status Report with the Court (i) advising the Court of the status of the parties' negotiations, and (ii) proposing a schedule for further proceedings in this action, if necessary. Additional dates will be set as necessary. The dates identified are firm; the Court has endeavored to give the parties the schedule that they have requested and expects that they will adhere to that schedule. Signed by Judge Colleen Kollar-Kotelly on May 13, 2011. (lcckk3) (Entered: 05/13/2011)
2011-05-17		Set/Reset Deadlines: Joint Status Report due by 7/1/2011. (dot ) (Entered: 05/17/2011)
2011-06-22	9	ORDER Establishing Procedures for Electronic Filing for Cases Assigned to Judge Colleen Kollar-Kotelly, signed on June 22, 2011. (SM) (Entered: 06/22/2011)
2011-07-01	10	STATUS REPORT (JOINT) by JUDICIAL WATCH, INC., UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Aldrich, Jason) (Entered: 07/01/2011)
2011-07-01	11	Scheduling and Procedures Order for summary judgment briefing as proposed in the Joint Status Report filed by the parties on July 1, 2011. Accordingly, Defendant's Motion for Summary Judgment due 8/5/2011; Plaintiff's Opposition due 8/26/2011; and Defendant's Reply due 9/16/2011. Signed by Judge Colleen Kollar-Kotelly on July 1, 2011. (SM) (Entered: 07/01/2011)
2011-07-01		Set/Reset Deadlines: Defendant's Summary Judgment motions due by 8/5/2011. Response to Motion for Summary Judgment due by 8/26/2011. Reply to Motion for Summary Judgment due by 9/16/2011. (dot ) (Entered: 07/06/2011)
2011-08-04	12	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit FOIA Release, # 2 Exhibit Law Declaration, # 3 Exhibit Email (June 30, 2011), # 4 Exhibit Vaughn Index, # 5 Statement of Facts, # 6 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 08/04/2011)
2011-08-04	13	Amended MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit A: FOIA Release, # 2 Exhibit B: Law Declaration, # 3 Exhibit C: Email (June 30, 2011), # 4 Exhibit D: Vaughn Index, # 5 Statement of Facts, # 6 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 08/04/2011)
2011-08-26	14	Memorandum in opposition to re 12 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 08/26/2011)
2011-09-16	15	REPLY to opposition to motion re 13 Amended MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Dworkowitz, Gregory) (Entered: 09/16/2011)
2012-01-27	16	MEMORANDUM OPINION AND ORDER. For the reasons set forth herein, DHS's [12/13] Motion for Summary Judgment is GRANTED-IN-PART and DENIED-IN-PART. Specifically, the motion is GRANTED insofar as it seeks a ruling that information has been appropriately withheld from DHS0201-0202, DHS0203-0235, and DHS0236-0237 on the basis of the work product doctrine. Meanwhile, the motion is DENIED insofar as it seeks a ruling that information has been appropriately withheld from (a) DHS0010, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHS0112 on the basis of the attorney-client privilege; (b) DHS0010, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DH0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHS0112 on the basis of the work product doctrine; and (c) DHS0030, DHS0031-0035, DHS0046, DHS0053-0054, DHS0056, DHS0057, DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHS0112 on the basis of the deliberative process privilege. The Court shall afford DHS a FINAL opportunity to discharge its burden of establishing the applicability of the remaining claimed privileges to the information withheld from Judicial Watch. The parties shall promptly meet and confer and, by no later than February 8, 2012, file a Joint Status Report proposing a schedule for further proceedings, which shall include, at a minimum, proposed deadlines for DHS's production of a revised Vaughn Index and agency declaration and for the briefing of a renewed motion for summary judgment. Signed by Judge Colleen Kollar-Kotelly on January 27, 2012. (lcckk3) (Entered: 01/27/2012)
2012-02-07	17	STATUS REPORT (Joint) by JUDICIAL WATCH, INC., UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Dworkowitz, Gregory) (Entered: 02/07/2012)
2012-02-07		MINUTE ORDER: Pursuant to the Joint Status Report filed on February 7, 2012, the Court hereby adopts the parties' proposed schedule for further summary judgment briefing. Accordingly, Defendant's Renewed Motion for Summary Judgment with attached revised Vaughn index and agency declaration shall be due no later than March 9, 2012; Plaintiff's Opposition and Cross-Motion for Summary Judgment shall be due no later than March 30, 2012; Defendant's Reply and Opposition to Cross-Motion for Summary Judgment shall be due no later than April 20, 2012; and Plaintiff's Reply shall be due no later than May 11, 2012. Signed by Judge Colleen Kollar-Kotelly on February 7, 2012. (SM) (Entered: 02/07/2012)
2012-02-07		Set/Reset Deadlines: Plaintiff's Cross Motions due by 3/30/2012. Response to Cross Motions due by 4/20/2012. Reply to Cross Motions due by 5/11/2012. Vaughn index and agency declaration due by 3/9/2012. Response to Motion for Summary Judgment due by 3/30/2012. Reply to Motion for Summary Judgment due by 4/20/2012. (dot ) (Entered: 02/10/2012)
2012-03-09	18	MOTION for Summary Judgment Renewed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY (Attachments: # 1 Exhibit A: Second Vaughn Index, # 2 Exhibit B: Second Law Declaration, # 3 Statement of Facts, # 4 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 03/09/2012)
2012-03-30	19	Memorandum in opposition to re 18 MOTION for Summary Judgment Renewed with response to Defendant's Statement of Material Facts filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 03/30/2012)
2012-03-30	20	Cross MOTION for Summary Judgment with Statement of Material Facts by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Aldrich, Jason) (Entered: 03/30/2012)
2012-04-20	21	RESPONSE re 20 Cross MOTION for Summary Judgment with Statement of Material Facts filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Statement of Facts Response to Plaintiff's SMF, # 2 Text of Proposed Order)(Dworkowitz, Gregory) (Entered: 04/20/2012)
2012-04-20	22	REPLY to opposition to motion re 18 MOTION for Summary Judgment Renewed filed by UNITED STATES DEPARTMENT OF HOMELAND SECURITY. (Dworkowitz, Gregory) (Entered: 04/20/2012)
2012-05-09	23	REPLY to opposition to motion re 20 Cross MOTION for Summary Judgment with Statement of Material Facts filed by JUDICIAL WATCH, INC.. (Aldrich, Jason) (Entered: 05/09/2012)
2013-02-28	24	ORDER. For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that the 18 Renewed Motion for Summary Judgment filed by the United States Department of Homeland Security ("DHS") is GRANTED-IN-PART and DENIED-IN-PART, and the 20 Cross-Motion for Summary Judgment filed by Judicial Watch, Inc. ("Judicial Watch") is GRANTED-IN-PART and DENIED-IN-PART. Specifically, it is ORDERED that DHS's 18 Renewed Motion for Summary Judgment is granted insofar as DHS seeks a ruling that DHS has lawfully withheld information from the following documents pursuant to the deliberative process privilege: DHS0030, DHS0031-0035, DHS0046, DHS0053-0054, DHS0056, DHS0057, DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHS0112. DHS's motion is also granted insofar as DHS seeks a ruling that the information redacted from the middle of DHS0034 and the information redacted from the bottom of DHS0053 was lawfully withheld pursuant to the work-product doctrine. DHS's motion is otherwise denied; it is further ORDERED that Judicial Watch's 20 Cross-Motion for Summary Judgment is granted insofar as Judicial Watch seeks an order compelling DHS to disclose to it all information withheld on the basis of the work-product doctrine from the following documents: DSH0010; DHS0031-0035 (with the exception of information redacted from the document pursuant to the deliberative process privilege and information redacted from the middle of DHS0034, which was lawfully withheld pursuant to the work-product doctrine); DHS0053-0054 (with the exception of information redacted from the document pursuant to the deliberative process privilege and information redacted from the bottom of DHS0053, which was lawfully withheld pursuant to the work-product doctrine); DHS0058-0059; and DHS0062. Judicial Watch's motion is also granted insofar as Judicial Watch seeks an order compelling DHS to disclose to it all information withheld on the basis of the attorney-client privilege from DHS0010, DHS0031-0035, DHS0058-0059, and DHS0062, insofar as that information is not otherwise protected by DHS's lawful assertions of the deliberative process and work-product privileges. Judicial Watch's motion is otherwise denied; and it is further ORDERED that this action is hereby DISMISSED. Signed by Judge Colleen Kollar-Kotelly on February 28, 2013. (lcckk1) (Entered: 02/28/2013)
2013-02-28	25	MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on February 28, 2013. (lcckk1) (Entered: 02/28/2013)
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