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Gahagan v. United States Citizenship and Immigration Services

United States District Court, E.D. Louisiana

August 8, 2017

MICHAEL GAHAGAN
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES

         SECTION “R” (3)

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE.

         Before the Court is the United States Citizenship and Immigration Service's (“USCIS”) motion for summary judgment.[1] For the following reasons, the Court grants USCIS's motion.

         I. BACKGROUND

         This Freedom of Information Act (“FOIA”) case involves a dispute between plaintiff Michael Gahagan, an immigration attorney, and USCIS, regarding plaintiff's request for agency records concerning his client. The Court has previously ruled on cross-motions for summary judgment, and the facts of this case are set forth more fully in the Court's December 2, 2015 order and July 26, 2016 order.[2] As relevant here, on July 26, 2016, the Court granted in part and denied in part USCIS's second motion for summary judgment. The Court found that USCIS was entitled to judgment as a matter of law with respect to: (1) USCIS's referral to the Department of State of four pages of agency records responsive to plaintiff's FOIA request, and (2) USCIS's non-disclosure of four additional pages of agency records identified in the agency's Vaughn index and supplemental Vaughn index as Records #21, #22, #334, and #572. But USCIS failed to show full FOIA compliance with respect to its non-disclosure of Records #15, #16, #31, and #32.[3] The Court ordered USCIS either to fully disclose Records #15, #16, #31, and #32 to plaintiff or produce a new Vaughn index more fully explaining its decision to withhold portions of each of the four documents.[4]

         On August 9, 2016, USCIS filed a revised Vaughn index and a declaration by Brian J. Welsh, the Deputy Chief of the FOIA Program Branch for USCIS within the Department of Homeland Security.[5] USCIS also filed a motion asking the Court to deem its supplemental filings sufficient to satisfy the Court's July 26, 2016 order.[6] USCIS's revised filings reviewed the agency's processing of plaintiff's FOIA request and more fully explained the relationship between the redacted materials and the privileges asserted.[7] Specifically, USCIS stated that Records #15, #16, #31, and #32 are lawfully withheld under FOIA exemption five because they fall within the attorney-client privilege and the deliberative process privilege.[8]

         Plaintiff challenged USCIS's supplemental filings, arguing that USCIS did not adequately conduct a segregability analysis of Records #15, #16, #31, and #32, and that USCIS made conclusory statements for the entries in the revised Vaughn index.[9] Additionally, plaintiff moved to strike Welsh's supplemental declaration for lack of personal knowledge.[10] On December 12, 2016, the Court granted plaintiff's motion to strike and ordered USCIS to submit a new supplemental declaration.[11]

         On January 11, 2017, USCIS submitted a revised supplemental declaration.[12] On May 10, 2017, USCIS filed a third motion for summary judgment, arguing that it has discharged its FOIA obligations and is therefore entitled to summary judgment.[13] Plaintiff argues that summary judgment is improper because USCIS has still failed to meet its FOIA burden of proof concerning the redactions of Records #15, #16, #31, and #32.[14]

         II. LEGAL STANDARD

         Summary judgment is available to the defendant in a FOIA case when the agency proves that it has fully discharged its obligations under FOIA, and there is no genuine issue of material fact, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester. See Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). The agency may satisfy its burden of proof through the submission of affidavits that identify the documents at issue and explain why they fall under the claimed exemption. Cooper Cameron Corp. v. U.S. Dep't of Labor, Occupational Safety & Health Admin., 280 F.3d 539, 543 (5th Cir. 2002). These affidavits must be clear, specific, and reasonably detailed while describing the withheld information in a factual and nonconclusory manner. Id. Further, the court will not grant summary judgment if there is contradictory evidence or evidence of agency bad faith. See Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994) (quoting Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980)). If the agency meets all of these requirements, the court will normally accord the affidavits substantial weight. But a reviewing court may also inspect the content of agency documents in camera to determine whether they fall under any of the FOIA exemptions. See 5 U.S.C. § 552(a)(4)(B).

         III. DISCUSSION

         A. Records #15, #16, #31, and #32

         USCIS continues to withhold Records #15, #16, #31, and #32 under FOIA exemption five, and it submits a revised Vaughn index explaining its decision.[15] Exemption five protects from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). “To qualify, a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). Exemption five encompasses the attorney-client privilege, the attorney work product privilege, and the deliberative process privilege. See Shermco Indus., Inc. v. Sec'y of the Air Force, 613 F.2d 1314, 1318 (5th Cir. 1980).

         USCIS contends that Records #15, #16, #31, and #32, which are email chains between agency employees, are protected from disclosure under both the attorney-client privilege and the deliberative process privilege. The Court addresses the attorney-client privilege first.

         In the context of a FOIA request, “the agency is the ‘client' and the agency's lawyers are the ‘attorneys' for the purposes of attorney-client privilege.” Judicial Watch, Inc. v. U.S. Dep't of the Treasury, 796 F.Supp.2d 13, 33 (D.D.C. 2011) (citing In re Lindsey, 148 F.3d 1100, 1105 (D.C. Cir. 1998)). To invoke the privilege, the agency “must show that the withheld document (1) involves confidential communications between an attorney and [the agency] and (2) relates to a legal matter for which the [agency] has sought professional advice.” Id. (quoting Wilderness Soc'y v. U.S. Dep't of the Interior, 344 F.Supp.2d 1, 16 (D.D.C. 2004)).

         The agency's revised Vaughn index carries this burden. The relevant index entries explain that the redacted portions of Records #15, #16, #31, and #32 consist of discussions between USCIS attorney Amisha Sharma and non-attorney personnel concerning the filing of a Mandamus action in federal court.[16] Importantly, the entries elaborate on this claim by providing the source and recipient of the communications, as well as a description of the matters discussed. See Ctr. For Medicare Advocacy, Inc. v. U.S. Dep't of Health & Human Servs., 577 F.Supp.2d 221, 238 (D.D.C. 2008) (explaining that identification of the parties to the communications “is critical to the Court's assessment of whether the communications are between an attorney and a client”). Specifically, the entries state that the redacted information includes USCIS attorney's “brief notification of the filing of a Mandamus action in Federal court to field office personnel, and requesting initial Agency action to be taken necessary for consultation with the Assistant United States Attorney.”[17] Additionally, the redacted records contain “information from Filed [sic] Counsel to field office personnel, and a brief summary of a discussion . . . on an immigration case as related to the Mandamus suit.”[18]USCIS's detailed index entries show that the redacted portions of Records #15, #16, ...


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