Case Detail

FOIA Project Annotation: A federal court in New York has ruled that a 1989 memo prepared by the Justice Department's Office of Legal Counsel for the FBI must be disclosed because it had been incorporated by reference into FBI policy and, thus, was no longer protected by Exemption 5 (deliberative process privilege). The FBI had requested the memo to clarify whether it had the authority to include names of persons with outstanding immigration warrants in the NCIC database. The memo concluded the agency could only enter names of persons with outstanding criminal charges and the agency adopted such a policy, although it was later changed. The court agreed that the memo "fit squarely within the protections of the deliberative process privilege because it is both predecisional and deliberative." A coalition of advocacy groups had sued Justice to force it to disclose the memo and other records. The groups argued that the government had waived its privilege through public disclosure and reliance. But the court noted that, unlike the Second Circuit's recent decision in National Council of La Raza v. Dept. of Justice, 411 F.3d 350 (2d Cir. 2005), where the appeals court had found the agency had waived its privilege for a memo because high ranking officials had discussed its contents in detail in public forums, the case for waiver was much weaker here. The court observed that "partial disclosure of 'the contents of a document does not constitute a waiver of the applicable FOIA exemptions for the entire document.'" But the court found the advocacy groups had a much stronger case on the issue of reliance. The agency argued that La Raza allowed for such disclosure only where a document was the sole legal basis for the policy. The court disagreed, noting that "it's hard to believe that the Second Circuit intended to fashion such a narrow standard, and didn't bother to say so. . . While it is true the facts of La Raza showed public and repeated reliance by the Attorney General on a particular OLC memo, it does not follow that anything less than that will fail to abrogate the privilege." The court pointed out that "clearly, then, the 1989 Memo (its reasoning and conclusion) was the basis for the decision to enter criminal, but not civil, INS warrants into the NCIC database. The Government argues that the phrase 'following that opinion' could just as easily be a temporal reference. Not likely. This is a statement of affirmative reliance on the 1989 Memo for a policy decision made by the FBI. The FBI expressly sought an opinion from the OLC in 1987, and while that alone is not enough to justify disclosure, taking all of the circumstances together, it seems beyond peradventure that the FBI adopted the substance of the 1989 Memo as its policy." The court indicated that other agency documents confirmed that the FBI had relied on the 1989 Memo. The court observed that "those memoranda, combined with the affirmative statement by the FBI in 1987 that it sought legal support from the OLC, and the 1992 [NCIC Advisory Policy Board] Topic Paper that purports to 'follow' the 1989 Memo, demonstrate that the reasoning and conclusion of the 1989 Memo were adopted into agency policy."
Issues: Exemption 5 - Privileges - Waiver of privilege

Date Filed	Doc #	Docket Text
2004-10-29	1	COMPLAINT against Federal Bureau of Investigations, United States Bureau of Immigration and Customs Enforcement. (Filing Fee $ 150.00, Receipt Number 524876)Document filed by Bronx Defenders, Washington Square Legal Services, Inc..(gf, ) (Entered: 11/01/2004)
2004-10-29	2	RULE 7.1 DISCLOSURE STATEMENT. Document filed by Bronx Defenders.(gf, ) (Entered: 11/01/2004)
2004-10-29	3	RULE 7.1 DISCLOSURE STATEMENT. Document filed by Washington Square Legal Services, Inc..(gf, ) (Entered: 11/01/2004)
2004-10-29		CASE REFERRED TO Judge Harold Baer, Jr. as possibly related to M-54. (gf, ) (Entered: 11/01/2004)
2004-11-29	4	ANSWER to Complaint. Document filed by Federal Bureau of Investigations, United States Bureau of Immigration and Customs Enforcement.(pl, ) (Entered: 12/01/2004)
2004-12-02	5	ORDER I believe, as amicus argues, that the documents at issue in Bronx Defenders, should their production untimately be ordered, will assist the Court in resolving the Government's pending motion for reconsideration. The parties will appear for a pre-trial conference in the Bronx Defenders v ICE matter on 12/16/04 at 12:40 p.m., so we can work to resolve that matter forthwith. (Signed by Judge Harold Baer on 12/1/04) (jco, ) (Entered: 12/06/2004)
2004-12-07		CASE ACCEPTED AS RELATED TO M 54. Notice of Assignment to follow. (laq, ) (Entered: 12/10/2004)
2004-12-07	6	NOTICE OF CASE ASSIGNMENT to Judge Harold Baer. Judge Unassigned no longer assigned to the case. (laq, ) (Entered: 12/10/2004)
2004-12-07		Magistrate Judge Douglas F. Eaton is so designated. (laq, ) (Entered: 12/10/2004)
2004-12-10		Mailed notice to the attorney(s) of record. (laq, ) (Entered: 12/10/2004)
2004-12-20	7	MEMO ENDORSEMENT on Form for designating compliance with the Southern District Student Practice Rule from Ivan E. Espinoza-Madrigal. (Signed by Judge Harold Baer on 12/16/04) (sac, ) (Entered: 12/22/2004)
2004-12-20	8	ENDORSED LETTER addressed to Judge Baer from Randy Hertz dated 12/14/04: authorizing Ivan E. Expinoza-Madrigal, student intern, to appear for plaintffs. (Signed by Judge Harold Baer on 12/16/04) (cd, ) (Entered: 12/27/2004)
2004-12-20	9	ORDER, that the plntfs are granted leave to amend the complaint; defts are granted leave to move for a stay of the proceedings in this matter, on or before 1/14/05, fully briefed and with a courtesy copy to chambers; the Court will hold oral argument on deft's motion on 1/20/05; the Court will hold the pending motion for reconsideration in the related case, in abeyance until 1/20/05, at which time it will determine if a further stay is warranted. (Signed by Judge Harold Baer on 12/16/04) (cd, ) (Entered: 12/27/2004)
2005-01-14	10	MOTION to Stay Proceedings Pursuant to 5 U.S.C. 552(a)(6)(C)(i) . Document filed by Federal Bureau of Investigations. Return Date set for 1/19/2005 03:00 PM. (Vargas, Jeannette) (Entered: 01/14/2005)
2005-01-14	11	MEMORANDUM OF LAW in Support re: 10 MOTION to Stay Proceedings Pursuant to 5 U.S.C. 552(a)(6)(C)(i) .. Document filed by Federal Bureau of Investigations. (Vargas, Jeannette) (Entered: 01/14/2005)
2005-01-14	12	DECLARATION of Keith R. Gehle in Support re: 10 MOTION to Stay Proceedings Pursuant to 5 U.S.C. 552(a)(6)(C)(i) .. Document filed by Federal Bureau of Investigations. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Vargas, Jeannette) (Entered: 01/14/2005)
2005-01-14	14	MOTION (FILED ON SERVICE DATE) to Stay proceedings pursuant to 5 USC Section 552(a)(6)(C)(i). Document filed by United State Department of Homeland Security, United States Department of Justice. (rw, ) (Entered: 02/07/2005)
2005-01-14	15	MEMORANDUM OF LAW in Support re: 14 MOTION (FILED ON SERVICE DATE) to Stay. Document filed by United State Department of Homeland Security, United States Department of Justice. (rw, ) (Entered: 02/07/2005)
2005-01-14	16	MEMORANDUM OF LAW in Opposition re: 14 MOTION (FILED ON SERVICE DATE) to Stay. Document filed by Bronx Defenders, Washington Square Legal Services, Inc., The American Civil Liberties Union. (rw, ) (Entered: 02/07/2005)
2005-01-14	17	AFFIRMATION of IVAN ESPINOZA-MADRIGAL in Opposition re: 14 MOTION (FILED ON SERVICE DATE) to Stay. Document filed by Washington Square Legal Services, Inc. (rw, ) (Entered: 02/07/2005)
2005-01-14	18	REPLY MEMORANDUM OF LAW in Support re: 14 MOTION (FILED ON SERVICE DATE) to Stay. Document filed by United States Department of Homeland Security, United States Department of Justice. (rw, ) (Entered: 02/07/2005)
2005-01-18	13	AMENDED COMPLAINT amending 1 Complaint against United State Department of Homeland Security, United States Department of Justice.Document filed by American-Arab Anti-Discrimination Committee ("ADC"), National Council of La Raza, National Immigration Law Center, New York Immigration Coalition, The American Civil Liberties Union. Related document: 1 Complaint filed by Bronx Defenders,, Washington Square Legal Services, Inc.,.(pl, ) (Entered: 01/26/2005)
2005-01-18		Set Answer Due Date purs. to 13 Amended Complaint, as to United State Department of Homeland Security answer due on 2/2/2005; United States Department of Justice answer due on 2/2/2005. (pl, ) (Entered: 01/26/2005)
2005-01-28	19	ORDER; regarding procedures that shall be followed with regards to the FBI's final response to plaintiff Washington Square Legal Services portion of its ROIA Requests designated FOIPA Request Number 0997876-000. Defendants' answer(s) to the First Amended Complaint shall be filed on 2/7/05; the Court will hold the pending motion for reconsideration in the related case Doe v. Immigration and Customs Enforcement, M-54, in abeyance until further notice. (Signed by Judge Harold Baer on 1/27/05) (pl, ) (Entered: 02/08/2005)
2005-01-28		Set Answer Due Date purs. to 19 Order,, as to United State Department of Homeland Security answer due on 2/7/2005; United States Department of Justice answer due on 2/7/2005. (pl, ) (Entered: 02/08/2005)
2005-02-07	20	ANSWER to Amended Complaint. Document filed by United State Department of Homeland Security, United States Bureau of Immigration and Customs Enforcement.(cd, ) (Entered: 02/14/2005)
2005-02-23	21	TRANSCRIPT of proceedings held on January 19, 2005, 3:00 p.m. before Judge Harold Baer. (dt, ) (Entered: 02/23/2005)
2005-03-28	22	STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL, The above entitled action has been settled and it is hereby dismissed. The parties agree that the United States District Court for the Southern District of New York shall retain jurisdiction over any controversy or claims arising out of or relating to this Agreement, or the breach thereof. (Signed by Judge Harold Baer on 3/28/05) (dt, ) (Entered: 03/30/2005)
2005-04-07	23	ENDORSED LETTER addressed to Judge Harold Baer, Jr. from Ivan Espinoza-Madrigal dated 3/14/05 re: no conference is necessary, the proposed discovery is stayed until the motion for summary judgment, as discussed in Judge Spatt's well reasoned opinion "Yatani" at 1990 WL 72632. (Signed by Judge Harold Baer on 4/2/05) (db, ) (Entered: 04/08/2005)
2005-04-21	24	STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL. With 2 weeks of the date of entry of this Stipulation and Order, The U.S. Bureau of Immigration and Customs Enforcement will release to Washington Square Legal Services the information and data further set forth in this Order. The release of documents and other information further set forth in this Order, shall be in full settlement of any and all claims plaintiff or its successors or assigns now have or may hereafter acquire against ICE, the Department of Homeland Security, or the U.S., or any department, agency, officer, or employee of ICe, DHS and/or the U.S., related to or arising from the Hit Confirmation Request. As of the date of entry of this Stipulation and Order by the Court, plaintiff hereby releases and forever discharges the U.S., its departments, bureaus, commissions, and other subdivisions, including ICE, and their present and former agents, servants, officers, and employees, individually and in their official capacities, from any and all actions, causes of action, claims and liability which plaintiff or their successors or assigns ever had, now have, or may hereafter acquire in connection with the Hit Confirmation Request. The parties agree that ICE shall not be liable for any attorneys' fees and costs incurred by the Washington Square Legal Services with respect to the Hit Confirmation Requests as of the date of this Stipulation and Order (Signed by Judge Harold Baer on 4/20/05) (yv, ) Modified on 4/22/2005 (yv, ). (Entered: 04/22/2005)
2005-04-28	25	STIPULATION AND ORDER: plaintiffs hereby release and forever discharge the United States etc. By motions, fully briefed, by 6/3/05, the parties shall move for summary judgment on the sole issue of whether the 4/11.89 OLC Memorandum and the Email are exempt from disclosure under the FOIA pursuant to Exemption Five. (Signed by Judge Harold Baer on 4/26/05) (kw, ) (Entered: 05/02/2005)
2005-05-05	26	ENDORSED LETTER addressed to Judge Harold Baer, Jr. from Jeanette A. Vargas dated 5/2/05 re: this is the third and last adjournment, papers (motion for partial summary judgment) to be served no later than 6/13/05. (Signed by Judge Harold Baer on 5/5/05) (db, ) (Entered: 05/09/2005)
2005-05-10	27	MOTION (FILED ON SERVICE DATE) for Partial Summary Judgment. Document filed by United States Department of Justice. (jmi, ) (Entered: 05/13/2005)
2005-05-10	28	DEFENDANT UNITED STATES DEPARTMENT OF JUSTICE'S MEMORANDUM OF LAW in Support re: 27 MOTION (FILED ON SERVICE DATE) for Partial Summary Judgment.. Document filed by United States Department of Justice. (jmi, ) (Entered: 05/13/2005)
2005-06-08	29	FILING ERROR - ELECTRONIC FILING FOR NON-ECF CASE - FIRST MEMORANDUM OF LAW in Opposition re: 27 MOTION (FILED ON SERVICE DATE) for Partial Summary Judgment.. Document filed by Washington Square Legal Services, Inc.. (Wishnie, Michael) Modified on 7/18/2005 (gf, ). (Entered: 06/08/2005)
2005-06-08	30	FILING ERROR - ELECTRONIC FILING FOR NON-ECF CASE - DECLARATION of Espinoza-Madrigal in Opposition re: 27 MOTION (FILED ON SERVICE DATE) for Partial Summary Judgment.. Document filed by Washington Square Legal Services, Inc.. (Attachments: # 1 Exhibit E Part I# 2 Exhibit E Part II# 3 Exhibit F - G# 4 Supplement Plaintiffs Rule 56.1 Counterstatement)(Wishnie, Michael) Modified on 7/18/2005 (gf, ). (Entered: 06/08/2005)
2005-06-14	31	REPLY MEMORANDUM OF LAW in Support re: 27 MOTION (FILED ON SERVICE DATE) for Partial Summary Judgment. Document filed by United States Department of Justice. (yv, ) (Entered: 06/17/2005)
2005-07-18		***NOTE TO ATTORNEY TO RE-FILE DOCUMENT - NON-ECF CASE ERROR. Note to Attorney Michael Wishnie to MANUALLY RE-FILE Document First Memorandum of Law # 29 and Declaration # 30. This case is not ECF. (gf, ) (Entered: 07/18/2005)
2005-07-22	33	ORDER. The Department of Justice shall produce the 4/11/89 OLC Memorandum and the Email Communication to the Chambers of the Honorable Harold Baer, Jr. by 7/20/05, for in camera review in connection with the Court's resolution of the DOJ's motion for partial summary judgment (Signed by Judge Harold Baer on 7/21/05) (yv, ) (Entered: 07/28/2005)
2005-07-27	32	TRANSCRIPT of proceedings held on 7/12/05 before Judge Harold Baer. (lma, ) (Entered: 07/27/2005)
2005-12-19	34	MEMORANDUM AND OPINION 92534 re: 27 MOTION (FILED ON SERVICE DATE) for Partial Summary Judgment filed by United States Department of Justice. For the reasons set forth, the Government's motion is GRANTED in part and DENIED in part. The Gov't shall produce the 1989 Memo within 10 days of the date hereto. If there are to be any additional documents in this action that are challenged as exempt from disclosure, those motions shall be filed within 15 days from the date hereof. In addition, the parties and amici in the related case, Doe v. Ice, M-54, are instructed to provide the Court with any supplemental briefs, should they be necessary, in connection with the motion for reconsideration in that case within 30 days of the date hereof. (Signed by Judge Harold Baer on 12/19/2005) (lb, ) Modified on 12/21/2005 (ns, ). (Entered: 12/19/2005)
2005-12-27	35	STIPULATION AND ORDER OF SETTLEMENT OF CLAIMS WITH RESPECT TO THE FEDERAL BUREAU OF INVESTIGATION: The parties agree that the Unites States District Court for the Southern district of New York shall retain jurisdiction over any controversy or claim arising out of or relating to this Ageement, or the breach thereof. ENDORSEMENT: I am signing this with the understanding that I agree only insofar as the stipulation is consistent with my decision of earlier this month-e.g., 5(c) of course will govern matters address therein. (Signed by Judge Harold Baer on 12/21/05) (js, ) (Entered: 12/28/2005)
2005-12-27	36	MOTION (FILED ON SERVICE DATE) to Stay Pending Resolution of an Appeal on the Merits. Document filed by United State Department of Homeland Security, United States Department of Justice, United States Bureau of Immigration and Customs Enforcement, Federal Bureau of Investigations. (jmi, ) (Entered: 12/28/2005)
2005-12-27	37	MEMORANDUM OF LAW in Support re: 36 MOTION (FILED ON SERVICE DATE) to Stay.. Document filed by United State Department of Homeland Security, United States Department of Justice, United States Bureau of Immigration and Customs Enforcement, Federal Bureau of Investigations. (jmi, ) (Entered: 12/28/2005)
2006-01-03	38	NOTICE OF APPEAL from 34 Memorandum & Opinion. Document filed by United States Department of Justice. Copies of Notice of Appeal mailed to Attorney(s) of Record: Washington Square Legal Services. (tp, ) (Entered: 01/04/2006)
2006-01-03		Appeal Remark as to 38 Notice of Appeal filed by United States Department of Justice. NO FEE, USA. (tp, ) (Entered: 01/04/2006)
2006-01-03	39	ENDORSED LETTER addressed to Judge Harold Baer from Jeannette Vargas dated 12/29/05 re: counsel for dfts request a two week extension of time until 1/17/06 of the deadline for the submission of additional briefing in this litigation. I will approve and hereby do grant your application but the settlement table is now just a little stale. Nonetheless, table the time, settle if you can and don't ask for additional extensions. (Signed by Judge Harold Baer on 1/3/06) (dle, ) (Entered: 01/04/2006)
2006-01-04		Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 38 Notice of Appeal. (tp, ) (Entered: 01/04/2006)
2006-01-04		Transmission of Notice of Appeal to the District Judge re: 38 Notice of Appeal. (tp, ) (Entered: 01/04/2006)
2006-01-05	40	STIPULATION AND ORDER;... The time for Plaintiffs to file for attorneys' fees and costs in the matter is extended 30 days after either the issuance of a final judgment resolving all claims in this matter by the District Court, should the parties decide not to take an appeal from that judgment, or after issuance of a writ of mandate on an appeal from the final judgment in the Second Circuit. (Signed by Judge Harold Baer on 1/5/06) (djc, ) (Entered: 01/05/2006)
2006-01-06	41	MEMO ENDORSEMENT: on courtesy copy re: 37 Memorandum of Law in Support of Motion for a stay pending resolution of appeal on the merits. ENDORSEMENT: Just so this Court is on the record-the application for a stay is denied. The requirements are stringent and while relaxed on occasion you have failed to meet the test. (Signed by Judge Harold Baer on 1/3/2006) (lb, ) (Entered: 01/09/2006)
2006-01-19	42	STIPULATION AND ORDER OF SETTLEMENT OF CLAIMS; the release of documents responsive to the FOIA request as described herein fully settles any and all claims plaintiffs or their successors or assigns now have or may hereafter acquire. The parties agree that OIP and DOJ shall not be liable for any attorneys' fees and costs incurred by the plaintiffs...... (Signed by Judge Harold Baer on 1/19/06) (kco, ) (Entered: 01/20/2006)
2006-01-19	43	STIPULATION AND ORDER OF SETTLEMENT AND DISMISSAL; the amended complaint against the defendant Department of Homeland Security shall be dismissed with prejudice with provisions as set forth in this order. (Signed by Judge Harold Baer on 1/19/06) (kco, ) (Entered: 01/20/2006)
2006-02-28	44	MANDATE of USCA (Certified Copy) as to 38 Notice of Appeal filed by United States Department of Justice, USCA Case Number 06-0005-cv. It is hereby Ordered that the motion is GRANTED on consent. (Appeal WITHDRAWN). Motion for stay is moot. Roseann B. MacKechnie, Clerk USCA. Certified: 2/22/06. (tp, ) (Entered: 03/01/2006)
2006-03-22	45	STIPULATION AND ORDER REGARDING FEES, COSTS AND DISMISSAL; The release of the 1989 OLC Memorandum fully settles any and all claims plaintiffs now have or may hereafter acquire against the United States, etc.. The parties agree that DOJ has fully complied with the Opinion and Order by its production of the 1989 OLC Memorandum on 2/10/06. The United States shall pay to Washington Square Legal Services the sum of $39,000.00 in attorneys' fees and litigation costs. This action is hereby dismissed with prejudice, without attorneys' fees and costs except to the extent provided in paragraph 4. (Signed by Judge Harold Baer on 3/22/06) (sac, ) (Entered: 03/22/2006)
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