Case Detail

FOIA Project Annotation: Judge Royce Lamberth has ruled that the Office of Civil Rights and Civil Liberties at the Department of Homeland Security did not properly respond to National Public Radio reporter Tom Dreisbach's FOIA request for records concerning inspection and investigative reports from CRCL examinations of immigration detention facilities operated under the auspices of U.S. Immigration and Customs Enforcement from January 2014 to December 2019. CRCL located 1,076 pages of responsive records but withheld records under Exemption 5 (privileges) and Exemption 6 (invasion of privacy). NPR filed an administrative appeal of the exemption claims. The agency's appellate authority found that while some records appeared privileged the agency had not shown whether they had been adopted by the agency and whether the agency had conducted an adequate segregability analysis and remanded the case back to DHS for further explanation. DHS filed a response for why the records were privileged, but not about the segregability analysis. As a result, the agency's appellate authority allowed NPR to file suit. NPR only challenged the applicability of the agency's Exemption 5 claims. Lamberth found that DHS had shown that the records were predecisional. NPR argued that because CRCL had closed four of 16 investigations indicated their examination constituted the agency's final decision. Lamberth noted that "that an agency closes an investigation or discloses some unspecified details from that investigation does not mean that it has already adopted or used the investigators' advice and recommendations." However, Lamberth concluded that the records were not deliberative. He indicated that "DHS's argument about 'unverified observations of first impression,' while creative, finds no support in extant FOIA jurisprudence. Most of the cases DHS cites (for the first time in its reply) for the proposition that such information is deliberative deal with the culling or organization of an existing collection of facts into a summary, not the initial finding of those facts." He added that "if the exception can apply to the culling of an existing collection of facts and the work of building that collection of facts, then it threatens to swallow the rule. This Court declines to expand the exception." He indicated that "because 'unverified observations of first impression' are not deliberative in nature, the deliberative process privilege applies only to the withholdings in this case that represent the experts' analysis, opinions, or recommendations." Lamberth then found that the agency had failed to show that disclosure would cause foreseeable harm. He pointed out that "nowhere does DHS explain why disclosure of these specific types of reports would chill deliberations more than that of any generic documents to which the deliberative process privilege applies." He observed that "in this case, DHS does not give a single specific explanation as to why disclosure of any particular report would cause public confusion."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional

Date Filed	Doc #	Docket Text
2020-09-03	1	COMPLAINT against U.S. DEPARTMENT OF HOMELAND SECURITY ( Filing fee $ 400 receipt number ADCDC-7548269) filed by NATIONAL PUBLIC RADIO, INC., TOM DREISBACH. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Civil Cover Sheet, # 8 Notice of Related Case, # 9 Summons to DHS, # 10 Summons to USAO, # 11 Summons to AG)(Mishkin, Maxwell) (Entered: 09/03/2020)
2020-09-03	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests NONE by NATIONAL PUBLIC RADIO, INC. (Mishkin, Maxwell) (Entered: 09/03/2020)
2020-09-03	3	NOTICE OF RELATED CASE by TOM DREISBACH, NATIONAL PUBLIC RADIO, INC.. Case related to Case No. 18-cv-2051. (zmc) (Entered: 09/04/2020)
2020-09-04		Case Assigned to Judge Royce C. Lamberth. (zsb) (Entered: 09/04/2020)
2020-09-04	4	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zmc) (Entered: 09/04/2020)
2020-09-15	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 9/8/2020. Answer due for ALL FEDERAL DEFENDANTS by 10/8/2020. (Mishkin, Maxwell) (Entered: 09/15/2020)
2020-09-23	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 09/14/2020. (Mishkin, Maxwell) (Entered: 09/23/2020)
2020-10-08	7	NOTICE of Appearance by Daniel Patrick Schaefer on behalf of U.S. DEPARTMENT OF HOMELAND SECURITY (Schaefer, Daniel) (Entered: 10/08/2020)
2020-10-08	8	ANSWER to Complaint by U.S. DEPARTMENT OF HOMELAND SECURITY.(Schaefer, Daniel) (Entered: 10/08/2020)
2020-10-09	9	ORDER directing the government to file a Vaughn Index and any supporting dispositive motions by 11/08/2020. Signed by Judge Royce C. Lamberth on 10/09/2020. (lcrcl3) (Entered: 10/09/2020)
2020-10-13		Set/Reset Deadlines: Vaughn Index due by 11/8/2020 (lsj) (Entered: 10/13/2020)
2020-11-09	10	Joint MOTION to Vacate 9 Order by TOM DREISBACH, NATIONAL PUBLIC RADIO, INC. (Attachments: # 1 Text of Proposed Order Plaintiffs' Proposed Order, # 2 Text of Proposed Order Defendant's Proposed Order)(Mishkin, Maxwell) (Entered: 11/09/2020)
2020-11-16	11	ORDER granting 10 Motion to Vacate and adopting defendant's scheduling proposal; Set/Reset Deadlines: Joint Status Report due by 4/30/2021. Signed by Judge Royce C. Lamberth on 11/16/2020. (lcrcl3) (Entered: 11/16/2020)
2021-04-30	12	Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 04/30/2021)
2021-05-04	13	ORDER: The parties shall file a joint status report no later than 6/29/2021. Signed by Judge Royce C. Lamberth on 5/4/2021. (lcrcl3) (Entered: 05/04/2021)
2021-06-29	14	Joint STATUS REPORT by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order Defendant's Proposed Order)(Schaefer, Daniel) (Entered: 06/29/2021)
2021-11-03	15	PROPOSED BRIEFING SCHEDULE (Joint Proposed) by U.S. DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Text of Proposed Order)(Schaefer, Daniel) (Entered: 11/03/2021)
2021-11-19	16	SCHEDULING ORDER: Defendant's Summary Judgment motion due by 12/15/2021. Plaintiffs' Opposition and Cross Motion for summary judgment due by 1/14/2022. Defendant's reply in support of its motion for summary judgment and response to Cross Motions due by 3/16/2022. Plaintiffs' reply in support of their cross motion due 3/30/2022. Signed by Judge Royce C. Lamberth on 11/19/2021. (lcrcl2) (Entered: 11/19/2021)
2021-12-15	17	MOTION for Summary Judgment by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Text of Proposed Order)(Schaefer, Daniel) (Entered: 12/15/2021)
2022-01-14	18	RESPONSE re 17 MOTION for Summary Judgment filed by TOM DREISBACH, NATIONAL PUBLIC RADIO, INC.. (Attachments: # 1 Counter-Statement of Undisputed Facts, # 2 Mishkin Declaration, # 3 Ex. 1 to Mishkin Decl., # 4 Ex. 2 to Mishkin Decl., # 5 Ex. 3 to Mishkin Decl., # 6 Ex. 4 to Mishkin Decl., # 7 Ex. 5 to Mishkin Decl., # 8 Ex. 6 to Mishkin Decl., # 9 Ex. 7 to Mishkin Decl., # 10 Ex. 8 to Mishkin Decl., # 11 Ex. 9 to Mishkin Decl., # 12 Ex. 10 to Mishkin Decl., # 13 Ex. 11 to Mishkin Decl., # 14 Ex. 12 to Mishkin Decl., # 15 Ex. 13 to Mishkin Decl., # 16 Ex. 14 to Mishkin Decl., # 17 Ex. 15 to Mishkin Decl., # 18 Ex. 16 to Mishkin Decl., # 19 Ex. 17 to Mishkin Decl., # 20 Proposed Order)(Mishkin, Maxwell) (Entered: 01/14/2022)
2022-01-14	19	Cross MOTION for Summary Judgment by TOM DREISBACH, NATIONAL PUBLIC RADIO, INC.. (Attachments: # 1 Memorandum in Support, # 2 Statement of Undisputed Facts, # 3 Mishkin Declaration, # 4 Ex. 1 to Mishkin Decl., # 5 Ex. 2 to Mishkin Decl., # 6 Ex. 3 to Mishkin Decl., # 7 Ex. 4 to Mishkin Decl., # 8 Ex. 5 to Mishkin Decl., # 9 Ex. 6 to Mishkin Decl., # 10 Ex. 7 to Mishkin Decl., # 11 Ex.8 to Mishkin Decl., # 12 Ex. 9 to Mishkin Decl., # 13 Ex. 10 to Mishkin Decl., # 14 Ex. 11 to Mishkin Decl., # 15 Ex. 12 to Mishkin Decl., # 16 Ex. 13 to Mishkin Decl., # 17 Ex. 14 to Mishkin Decl., # 18 Ex. 15 to Mishkin Decl., # 19 Ex. 16 to Mishkin Decl., # 20 Ex. 17 to Mishkin Decl., # 21 Proposed Order)(Mishkin, Maxwell) (Entered: 01/14/2022)
2022-03-16	20	Memorandum in opposition to re 19 Cross MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Defendant's Response to Plaintiff's Statement of Material Facts)(Schaefer, Daniel) (Entered: 03/16/2022)
2022-03-16	21	REPLY to opposition to motion re 17 MOTION for Summary Judgment filed by DEPARTMENT OF HOMELAND SECURITY. (Attachments: # 1 Defendant's Response to Plaintiff's Statement of Material Facts)(Schaefer, Daniel) (Entered: 03/16/2022)
2022-03-30	22	REPLY to opposition to motion re 19 Cross MOTION for Summary Judgment filed by TOM DREISBACH, NATIONAL PUBLIC RADIO, INC.. (Mishkin, Maxwell) (Entered: 03/30/2022)
2022-09-28	23	MEMORANDUM OPINION re: Motion 17 for Summary Judgment and Cross-Motion 19 for Summary Judgment. Signed by Judge Royce C. Lamberth on 09/28/2022. (lcrcl3) (Entered: 09/28/2022)
2022-09-28	24	ORDER denying Motion 17 for Summary Judgment; granting Cross-Motion 19 for Summary Judgment: It is hereby ORDERED that defendant's motion for summary judgment is DENIED, plaintiffs' cross-motion for summary judgment is GRANTED, and judgment is ENTERED for plaintiffs. Defendant is ORDERED to re-process plaintiffs' FOIA request without any withholdings pursuant to FOIA Exemption 5. The Court retains jurisdiction to consider an award of attorneys' fees and costs. See Order for details. Signed by Judge Royce C. Lamberth on 09/28/2022. (lcrcl3) (Entered: 09/28/2022)
2022-10-11	25	Unopposed MOTION for Extension of Time to File Motion for Fees by TOM DREISBACH, NATIONAL PUBLIC RADIO, INC.. (Attachments: # 1 Proposed Order)(Mishkin, Maxwell) (Entered: 10/11/2022)
2022-10-12	26	ORDER granting 25 Motion for Extension of Time to File; Set/Reset Deadlines: It is hereby ORDERED that the motion is GRANTED, and plaintiffs shall file any motion for attorney's fees and costs by 12/28/2022. Signed by Judge Royce C. Lamberth on 10/12/2022. (lcrcl3) (Entered: 10/12/2022)
2022-11-28	27	NOTICE OF SUBSTITUTION OF COUNSEL by Jeremy S. Simon on behalf of DEPARTMENT OF HOMELAND SECURITY Substituting for attorney Daniel P. Schaefer (Simon, Jeremy) (Entered: 11/28/2022)
2022-11-28	28	NOTICE OF APPEAL TO DC CIRCUIT COURT as to 24 Order on Motion for Summary Judgment,,,,, 23 Memorandum & Opinion by DEPARTMENT OF HOMELAND SECURITY. Fee Status: No Fee Paid. Parties have been notified. (Simon, Jeremy) (Entered: 11/28/2022)
2022-11-28	29	Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 28 Notice of Appeal to DC Circuit Court. (ztth) (Entered: 11/28/2022)
2022-11-30		USCA Case Number 22-5311 for 28 Notice of Appeal to DC Circuit Court filed by DEPARTMENT OF HOMELAND SECURITY. (ztth) (Entered: 11/30/2022)
2022-12-22	30	Consent MOTION to Hold in Abeyance Deadline for Fee Motion by TOM DREISBACH, NATIONAL PUBLIC RADIO, INC.. (Attachments: # 1 Text of Proposed Order)(Mishkin, Maxwell) Modified on 12/22/2022 to correct relief(zjm). (Entered: 12/22/2022)
2023-01-03	31	ORDER granting Motion 30 to Hold in Abeyance: It is hereby ORDERED that the motion is GRANTED, the deadline for filing a motion for attorneys' fees is HELD IN ABEYANCE pending resolution of the appeal, and the parties shall file a Joint Status Report within 30 days of the issuance of the Circuit's mandate. See Order for details. Signed by Judge Royce C. Lamberth on 01/03/2023. (lcrcl3) (Entered: 01/03/2023)
2023-03-27	32	ORDER of USCA as to 28 Notice of Appeal to DC Circuit Court filed by DEPARTMENT OF HOMELAND SECURITY; USCA Case Number 22-5311. (ztth) (Entered: 03/28/2023)
2023-04-26	33	Joint STATUS REPORT by TOM DREISBACH, NATIONAL PUBLIC RADIO, INC.. (Mishkin, Maxwell) (Entered: 04/26/2023)
2023-06-05		MINUTE ORDER: In consideration of the most recent Joint Status Report 33 and the Order 32 of the Court of Appeals dismissing the appeal in this matter, it is hereby ORDERED that plaintiffs' deadline for filing a motion for attorneys' fees is HELD IN ABEYANCE until a further order of the Court and that the parties shall file a further Joint Status Report by 06/09/2023. Signed by Judge Royce C. Lamberth on 06/05/2023. (lcrcl3) (Entered: 06/05/2023)
2023-06-08	34	Joint STATUS REPORT by DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 06/08/2023)
2023-07-26	35	STIPULATION of Dismissal by DEPARTMENT OF HOMELAND SECURITY. (Simon, Jeremy) (Entered: 07/26/2023)
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