Case Detail

FOIA Project Annotation: A federal court in Massachusetts has ruled that U.S. Immigration and Customs Enforcement failed to show that it properly withheld records under Exemption 5 (privileges) in response to two FOIA requests submitted by the ACLU of Massachusetts pertaining to a 2019 speech made by Michael Albence, then ICE Director for Enforcement and Removal Operations, to the National Association of Sheriffs. ICE located 141 pages of responsive records. The agency withheld several drafts of Albence's remarks, as well as a draft agenda for the conference created by NSA and sent to ICE. Aside from its Exemption 5 claims, ICE also withheld records under Exemption 7(C) (invasion of privacy concerning law enforcement records) and Exemption 7(E) (investigative methods or techniques). The court found that the draft talking points, which were created by the Office of Public Affairs, and emails related to them were not deliberative and that the final version of the draft talking points was also not pre-decisional. The court pointed out that "here, ICE has proffered no evidence that any of three versions of the draft talking points involve not-yet-finalized policy decisions or were otherwise bound up with policy matters." The court indicated that "rather than correlating to or preceding another decision, the last-in-time version of the draft talking points is itself post-decisional; the relevant agency decision â€" determining the subject matter and substance of the talking points that ICE officials could refer to when presenting to NSA conference attendees â€" was resolved when the OPA finished its drafting and editing process." The agency argued that Albence could have changed the remarks when he delivered them, meaning that the final decision had not been made beforehand. The court rejected that argument, explaining instead that "whether or not the last-in-time version of the draft talking points was read verbatim, loosely paraphrased, or entirely disregarded, that document remains the final product of an agency decision-making process." The court indicated that the draft agenda from NSA was not subject to Exemption 5 because NSA did not qualify under the inter- or intra-agency threshold requirement. Acknowledging the existence of the consultant corollary exception, the court observed that "there is no colorable argument to support the invocation of Exemption 5 to protect a document created by a non-federal entity not serving as a paid consultant to the agency and not otherwise protected by another FOIA exemption."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Inter- or intra-agency record

Date Filed	Doc #	Docket Text
2019-04-10	1	COMPLAINT against Immigration and Customs Enforcement (ICE) Filing fee: $ 400, receipt number 0101-7630509 (Fee Status: Filing Fee paid), filed by ACLU of Massachusetts. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet, # 4 Civil Category Sheet)(McFadden, Daniel) (Entered: 04/10/2019)
2019-04-10	2	ELECTRONIC NOTICE of Case Assignment. District Judge Leo T. Sorokin assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Jennifer C. Boal. (Finn, Mary) (Entered: 04/10/2019)
2019-04-10	3	NOTICE of Appearance by Matthew Segal on behalf of American Civil Liberties Union of Massachusetts, Inc. (Segal, Matthew) (Entered: 04/10/2019)
2019-04-10	4	Summons Issued as to U.S. Immigration and Customs Enforcement. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Burgos, Sandra) (Entered: 04/10/2019)
2019-04-26	5	SUMMONS Returned Executed U.S. Immigration and Customs Enforcement served on 4/12/2019, answer due 5/3/2019. (McFadden, Daniel) (Entered: 04/26/2019)
2019-04-26	6	AFFIDAVIT OF SERVICE Executed by American Civil Liberties Union of Massachusetts, Inc.. U.S. Immigration and Customs Enforcement served on 4/11/2019, answer due 5/3/2019. Acknowledgement filed by American Civil Liberties Union of Massachusetts, Inc.. (McFadden, Daniel) (Entered: 04/26/2019)
2019-05-13	7	ANSWER to Complaint by U.S. Immigration and Customs Enforcement.(Poswistilo, Susan) (Entered: 05/13/2019)
2019-05-14	8	NOTICE of Scheduling Conference; A Scheduling Conference has been set for 6/12/2019 03:00 PM in Courtroom 13 before District Judge Leo T. Sorokin. (Attachments: # 1 scheduling order sample, # 2 standing order re summary judgment)(Simeone, Maria) (Entered: 05/14/2019)
2019-05-20	9	NOTICE of Appearance by Jessica J. Lewis on behalf of American Civil Liberties Union of Massachusetts, Inc. (Lewis, Jessica) (Entered: 05/20/2019)
2019-06-05	10	JOINT SUBMISSION pursuant to Local Rule 16.1 by American Civil Liberties Union of Massachusetts, Inc..(McFadden, Daniel) (Entered: 06/05/2019)
2019-06-05	11	CERTIFICATION pursuant to Local Rule 16.1 by American Civil Liberties Union of Massachusetts, Inc..(McFadden, Daniel) (Entered: 06/05/2019)
2019-06-07	12	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. The proposed joint schedule, Doc. No. 10, is ADOPTED as the scheduling order and the Rule 16 conference set for June 12, 2019 is CANCELLED at the request of the parties. re 10 Joint submission filed by American Civil Liberties Union of Massachusetts, Inc., ORDER Canceling Deadline(Montes, Mariliz) (Entered: 06/07/2019)
2019-06-10	13	Reset Deadlines: Amended Pleadings due by 7/26/2019. summary judgment Motions due by 8/16/2019. Cross Motion/Responses due by 9/13/2019, Opposition/Replies due by 9/25/2019. (Simeone, Maria) (Entered: 06/10/2019)
2019-07-25	14	First MOTION to Amend 1 Complaint, by American Civil Liberties Union of Massachusetts, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Lewis, Jessica) (Attachment 1 replaced on 7/29/2019) (Montes, Mariliz). Modified on 7/29/2019 to replace Exhibit A. Previous was corrupted and not readable. (Montes, Mariliz). (Entered: 07/25/2019)
2019-08-08	15	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. Allowed as unopposed. re 14 Motion to Amend (Simeone, Maria) (Entered: 08/08/2019)
2019-08-09	16	AMENDED COMPLAINT against U.S. Immigration and Customs Enforcement, filed by American Civil Liberties Union of Massachusetts, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Lewis, Jessica) (Entered: 08/09/2019)
2019-08-15	17	Assented to MOTION for Extension of Time to 9/11/19, 10/9/19, 10/21/19 to File Motion for Summary Judgment on 9/11/19, Extend Time for Plaitiff to File its Opposition by 10/9/19 and File Cross-Motion for Summary Judgment on 10/21/19 by U.S. Immigration and Customs Enforcement.(Poswistilo, Susan) (Entered: 08/15/2019)
2019-08-19	18	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 17 Defendant's Motion for Extension of Time to File Motion for Summary Judgment and Extend Time for Plaintiff to File its Opposition and File Cross-Motion for Summary Judgment (Assented-To). Defendant's Motion for Summary Judgment due by 9/11/2019 ; Plaintiff's Opposition and Cross Motion due by 10/9/2019 ; Defendant's Opposition and Reply due by 10/21/2019. (Montes, Mariliz) (Entered: 08/19/2019)
2019-08-19	19	Reset Deadlines: Defendant's Motion for Summary Judgment due by 9/11/2019; Plaintiff's Opposition / Cross Motion due by 10/9/2019; Defendant's Opposition and Reply due by 10/21/2019 (Montes, Mariliz) (Entered: 08/19/2019)
2019-09-11	20	MOTION for Summary Judgment by U.S. Immigration and Customs Enforcement.(Poswistilo, Susan) (Entered: 09/11/2019)
2019-09-11	21	STATEMENT of facts Undisputed Material Facts . (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Poswistilo, Susan) (Entered: 09/11/2019)
2019-09-11	22	MEMORANDUM in Support re 20 MOTION for Summary Judgment filed by U.S. Immigration and Customs Enforcement. (Poswistilo, Susan) (Entered: 09/11/2019)
2019-10-07	23	MOTION for Extension of Time to October 23, 2019 to File Response/Reply as to 20 MOTION for Summary Judgment by American Civil Liberties Union of Massachusetts, Inc..(Lewis, Jessica) (Entered: 10/07/2019)
2019-10-08	24	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 23 Motion for Extension of Time to File Response/Reply re 20 MOTION for Summary Judgment Responses due by 10/23/2019 (Simeone, Maria) (Entered: 10/08/2019)
2019-10-23	25	Cross MOTION for Summary Judgment by American Civil Liberties Union of Massachusetts, Inc..(Lewis, Jessica) (Entered: 10/23/2019)
2019-10-23	26	MEMORANDUM in Support re 25 Cross MOTION for Summary Judgment and In Opposition to Defendant's Motion for Summary Judgment filed by American Civil Liberties Union of Massachusetts, Inc.. (Lewis, Jessica) (Entered: 10/23/2019)
2019-10-23	27	Statement of Material Facts L.R. 56.1 re 25 Cross MOTION for Summary Judgment and Response to Defendant's Statement of Facts filed by American Civil Liberties Union of Massachusetts, Inc.. (Lewis, Jessica) (Entered: 10/23/2019)
2019-10-23	28	DECLARATION re 25 Cross MOTION for Summary Judgment by American Civil Liberties Union of Massachusetts, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Lewis, Jessica) (Entered: 10/23/2019)
2019-11-01	29	Assented to MOTION for Extension of Time to November 18, 2019 to File Response/Reply Plaintiff's Reply to December 3, 2019 by U.S. Immigration and Customs Enforcement.(Poswistilo, Susan) (Entered: 11/01/2019)
2019-11-04	30	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 29 Assented-To Defendant's Motion for Extension of Time to File Reply to Plaintiff's Opposition to Defendant's 20 MOTION for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment. Replies due by 11/18/2019. (Montes, Mariliz) (Entered: 11/04/2019)
2019-11-04	31	Reset Deadlines as to 25 Cross MOTION for Summary Judgment . Defendant's Opposition due by 11/18/2019; Plaintiff's Reply due by 12/3/2019. (Montes, Mariliz) (Entered: 11/04/2019)
2019-11-18	32	Assented to MOTION for Extension of Time to 12/17/19 to File Reply to Plainitff's Opposition to it Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment by U.S. Immigration and Customs Enforcement.(Poswistilo, Susan) (Entered: 11/18/2019)
2019-11-19	33	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 32 Defendant's Assented-To Motion for Extension of Time to File Reply to Plaintiff's Opposition to Its 20 Motion for Summary Judgment and Opposition to 25 Plaintiff's Cross-Motion for Summary Judgment. Defendant's Reply re. 20 Motion for Summary Judgment due by 12/17/2019 and opposition to Plaintiff's 25 Cross Motion for Summary Judgment due by 11/25/2019. (Montes, Mariliz) (Entered: 11/19/2019)
2019-11-20	34	Reset Deadlines: as to 25 Cross MOTION for Summary Judgment. Opposition due by 11/25/2019. Reply due by 12/17/2019. (Simeone, Maria) (Entered: 11/20/2019)
2019-11-25	35	Assented to MOTION for Extension of Time to 12/10/19 to File Response/Reply to Plantiff's Opposition and Opposition to Plaintiff's Cross-Motion for Summary Judgment by U.S. Immigration and Customs Enforcement.(Poswistilo, Susan) (Entered: 11/25/2019)
2019-11-26	36	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 35 Motion for Extension of Time to File Response/Reply re 25 Cross MOTION for Summary Judgment Defendant's due by 12/10/2019 ; Plaintiff's Reply due by 12/27/2019 . (Montes, Mariliz) (Entered: 11/26/2019)
2019-12-06	37	Assented to MOTION for Extension of Time to January 6, 2020 to File Reply to Plaintiff's Opposition and Opposition to Plaintiff's Cross-Motion for Summary Judgment by U.S. Immigration and Customs Enforcement.(Poswistilo, Susan) (Entered: 12/06/2019)
2019-12-06	38	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 37 Motion for Extension of Time. Defendants opposition to Plaintiffs Cross-Motion due on or before December 20, 2019, and Plaintiffs Reply be filed on or before January 6, 2020.(Simeone, Maria) Modified on 12/9/2019 (Simeone, Maria). (Entered: 12/06/2019)
2019-12-06	39	Reset Deadlines as to 25 Cross MOTION for Summary Judgment . Responses due by 12/12/2019 Replies due by 1/6/2020. (Simeone, Maria) (Entered: 12/06/2019)
2019-12-09	40	Reset Deadlines: as to 25 Cross MOTION for Summary Judgment . Responses due by 12/20/2019, Replies due by 1/6/2020. (Simeone, Maria) (Entered: 12/09/2019)
2019-12-20	41	Opposition re 25 Cross MOTION for Summary Judgment and Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment filed by U.S. Immigration and Customs Enforcement. (Attachments: # 1 Affidavit Declaration of Toni Fuentes)(Poswistilo, Susan) (Entered: 12/20/2019)
2020-01-06	42	REPLY to Response to 25 Cross MOTION for Summary Judgment filed by American Civil Liberties Union of Massachusetts, Inc.. (Lewis, Jessica) (Entered: 01/06/2020)
2020-03-24	43	District Judge Leo T. Sorokin: ORDER entered. For the foregoing reasons, ACLUM's cross-motion for summary judgment (Doc. No. 25) is ALLOWED IN PART and ICE's motion for summary judgment (Doc. No. 20) is ALLOWED IN PART and OTHERWISE DENIED. Within twenty-one days,ICE shall, consistent with this Order, disclose: The last-in-time version of the draft talking points, Doc. No. 21-6 at 39-44; The two earlier versions of the draft talking points, id . at 74-85 (Version 1, drafted February 4, 2019); id. at 105-110 (Version 2, drafted February 6, 2019); The portions of the relevant email communications previously withheld under Exemption 5, id. at 1, 11, 12, 13, 14, 15, 19, 22, 26, 29, 32; The draft agenda, id . at 38. During the next sixty days,ACLUM may conduct limited focus discovery regarding reasonableness of the searches performed by ICE. Within seven days after the completion of this discovery period, the parties shall file a joint status report setting forth their joint or separate positions as to the resolution of this dispute. Absent further order of the Court, thirty days after the completion of this further period of discovery, ICE shall file a renewed motion for summary judgment on the reasonableness of the search with an opposition/cross-motion due thirty days thereafter, followed by a reply in fourteen days, and a surreply fourteen days thereafter. (Montes, Mariliz) (Entered: 03/24/2020)
2020-03-24	44	Set Deadlines: In re. 43 Order: Status Report due by 6/1/2020. (Montes, Mariliz) (Entered: 03/24/2020)
2020-05-04	45	Assented to MOTION for Extension of Time to July 22, 2020 to Complete Discovery by American Civil Liberties Union of Massachusetts, Inc..(Lewis, Jessica) (Entered: 05/04/2020)
2020-05-05	46	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 45 Assented- to Motion for Extension of Time to Complete Discovery. Fact discovery to be completed by 7/22/2020. (Montes, Mariliz) (Entered: 05/05/2020)
2020-05-11	47	Reset Deadlines: Status Report due by 7/29/2020 (Simeone, Maria) (Entered: 05/11/2020)
2020-05-27	48	Joint MOTION for Protective Order by U.S. Immigration and Customs Enforcement. (Attachments: # 1 Text of Proposed Order)(Poswistilo, Susan) (Entered: 05/27/2020)
2020-05-28	49	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 48 Joint Motion for Protective Order (Montes, Mariliz) (Entered: 05/28/2020)
2020-05-28	50	District Judge Leo T. Sorokin: ENDORSED ORDER entered. STIPULATED PROTECTIVE ORDER.(Montes, Mariliz) (Entered: 05/28/2020)
2020-07-27	51	STATUS REPORT Joint by American Civil Liberties Union of Massachusetts, Inc.. (Lewis, Jessica) (Entered: 07/27/2020)
2020-07-27	52	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. The parties' request (Doc. No. 51) is ALLOWED. 51 Status Report filed by American Civil Liberties Union of Massachusetts, Inc. ( Motion for fees and costs due by 8/28/2020).(Montes, Mariliz) (Entered: 07/27/2020)
2020-08-26	53	Assented to MOTION for Extension of Time to 09/28/2020 to File Motion for Fees and Costs by American Civil Liberties Union of Massachusetts, Inc..(Lewis, Jessica) (Entered: 08/26/2020)
2020-08-26	54	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 53 Assented to Motion for Extension of Time to 09/28/2020 to File Motion for Fees and Costs by American Civil Liberties Union of Massachusetts, Inc. (Simeone, Maria) (Entered: 08/26/2020)
2020-08-26	55	Reset Deadlines: Motions for fees and costs due by 9/28/2020 (Simeone, Maria) (Entered: 08/26/2020)
2020-09-25	56	Joint MOTION to Stay Action for 60 Days by American Civil Liberties Union of Massachusetts, Inc..(Lewis, Jessica) (Entered: 09/25/2020)
2020-09-28	57	District Judge Leo T. Sorokin: ELECTRONIC ORDER entered granting 56 Joint MOTION to Stay Action for 60 Days until completion of settlement. The parties shall file a joint status report by November 27, 2020 , unless a stipulation of dismissal is filed prior to that date. (Montes, Mariliz) (Entered: 09/28/2020)
2020-09-28	58	Set Deadlines: Status Report due by 11/27/2020. (Montes, Mariliz) (Entered: 09/28/2020)
2020-11-02	59	STIPULATION of Dismissal by American Civil Liberties Union of Massachusetts, Inc.. (Lewis, Jessica) (Entered: 11/02/2020)
2020-11-03	60	District Judge Leo T. Sorokin: ORDER entered. CLOSING ORDER DISMISSING CASE.(Montes, Mariliz) (Entered: 11/03/2020)
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