United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is the United States Citizenship and Immigration
Service's (“USCIS”) motion for summary
judgment. For the following reasons, the Court
grants USCIS's motion.
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. 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. 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
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. USCIS also filed a motion asking the Court
to deem its supplemental filings sufficient to satisfy the
Court's July 26, 2016 order. 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. 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
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. Additionally, plaintiff moved to strike
Welsh's supplemental declaration for lack of personal
knowledge. On December 12, 2016, the Court granted
plaintiff's motion to strike and ordered USCIS to submit
a new supplemental declaration.
January 11, 2017, USCIS submitted a revised supplemental
declaration. 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. 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.
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).
Records #15, #16, #31, and #32
continues to withhold Records #15, #16, #31, and #32 under
FOIA exemption five, and it submits a revised Vaughn
index explaining its decision. 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).
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.
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)).
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. 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.” 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.”USCIS's detailed index entries show
that the redacted portions of Records #15, #16, ...