American Civil Liberties Union Foundation v. Department of Justice

• Court: District Court, N.D. California
• Decided: September 22, 2021
• Docket: 3:19-cv-00290
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AMERICAN CIVIL LIBERTIES UNION Case No. 19-cv-00290-EMC FOUNDATION, et al., 8 Plaintiffs, ORDER GRANTING IN PART AND 9 DENYING IN PART CROSS-MOTIONS v. FOR PARTIAL SUMMARY 10 JUDGMENT U.S. DEPARTMENT OF JUSTICE, et al., 11 Docket Nos. 98, 108 Defendants. 12 13 14 Plaintiffs American Civil Liberties Union Foundation and American Civil Liberties Union 15 Foundation of Northern California filed requests pursuant to the Freedom of Information Act 16 (FOIA), 5 U.S.C. § 552, to obtain records from seven federal agencies regarding those agencies’ 17 surveillance and monitoring of persons through social media. See Docket No. 1. (“Compl.”). 18 After the agencies allegedly failed to respond as FOIA requires, Plaintiffs filed this action to 19 compel the agencies to produce records responsive to Plaintiffs’ requests. Id. 20 Pending before the Court is Defendants’ motion for partial summary judgment with respect 21 to the adequacy of the searches and withholdings of U.S. Immigration and Customs Enforcement 22 (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizen and Immigration Services 23 (USCIS) (collectively, “Defendants”).1 See Docket No. 98 (“Defs.’ Mot.”). Also pending before 24 the Court is Plaintiffs’ cross-motion for partial summary judgment. See Docket No. 108 (“Pls.’ 25 Mot.”). For the following reasons, the Court GRANTS in part and DENIES in part Plaintiffs 26

27 1 Plaintiffs also seek records from the Department of Justice (DOJ), the Federal Bureau of 1 and Defendants’ motions. 2 I. BACKGROUND 3 A. Factual Background 4 Plaintiffs contend Defendants “are taking steps to monitor social media users and their 5 speech, activities, and associations” and the agencies are pursuing the ability to engage in 6 “programmatic and sustained tracking of U.S. citizens and noncitizens alike.” Compl. Plaintiffs 7 also allege Defendants have specifically “ramped up the monitoring and retention of immigrants’ 8 and visa applicants’ social media information, including for the purpose of conducting what the 9 Trump administration has called ‘extreme vetting’ or ‘visa lifecycle vetting.’” Id. 10 B. Procedural Background 11 On May 24, 2018, Plaintiffs submitted identical FOIA requests to Defendants “for records 12 pertaining to social media surveillance, including the monitoring and retention of immigrants’ and 13 visa applicants’ social media information for the purpose of conducting ‘extreme vetting.’” See 14 Docket No. 98-6 (White Decl., Ex A (“FOIA Requests”)) at 2. Plaintiffs sought five categories of 15 records:

16 (1) social media surveillance-related policies and guidance;

17 (2) records concerning the purchase or acquisition of social media surveillance technologies; 18 (3) communications to or from private businesses concerning social 19 media surveillance products;

20 (4) communications to or from social media platforms concerning surveillance of social media content; and 21 (5) records concerning the use or incorporation of social media 22 content within systems or programs that make use of algorithms, machine-learning processes, or predictive analytics applications. 23 24 Id. at 6–7. After Defendants allegedly failed to produce responsive documents, Plaintiffs 25 exhausted their administrative remedies and filed this lawsuit seeking to compel production on 26 January 17, 2019. See Compl. 27 On September 6, 2019, Defendants filed a motion for partial summary judgment with 1 see Docket No. 39 (“FBI Order”). 2 Eventually the agencies produced some records. CBP produced 358 pages of records in 3 five tranches between June and October of 2019, and it withheld four pages entirely. Defs.’ Mot. 4 at 3. ICE produced records between May and August of 2019, with a supplemental production in 5 February 2020, for a total of 2,169 pages. Id. USCIS produced 2,645 pages of records in July and 6 August 2019, and April 2020. Id. It produced reprocessed versions of these records in October 7 2020. Id. Thereafter and in preparation for summary judgment, Defendants produced draft 8 Vaughn2 indices and Plaintiffs narrowed the redactions and withholdings challenged by their 9 cross-motion. Pls.’ Mot. at 6. 10 On January 28, 2021, Defendants filed their motion for partial summary judgment with 11 respect to CBP, ICE, and USCIS. See Defs.’ Mot. On March 25, 2021, Plaintiffs filed their cross- 12 motion for partial summary judgment. See Pls.’ MSJ. 13 During oral argument on the cross-motions for summary judgment, the Court ordered the 14 Defendants to submit unredacted versions of all the documents at issue for in camera review. See 15 Docket No. 137. Defendants complied shortly thereafter. After reviewing the documents, the 16 Court determined that it needed clarification on Defendants’ position regarding the applicability of 17 the deliberative process privilege under FOIA Exemption 5. See Docket No. 139. Accordingly, 18 on September 17, 2021, the Court conducted an ex parte, in camera hearing with Defendants’ 19 counsel to go over all the redactions related to the deliberative process privilege so that 20 Defendants could explain with specificity how they contend that privilege applies to each 21 redaction. The transcript of this hearing was filed under seal such that only Defendants’ counsel 22 and the Court have access to it. 23 /// 24 /// 25

26 2 A “‘Vaughn index’ identifies each document withheld and the FOIA exemption claimed and explains how disclosure would damage the interests protected by the claimed exemption.” Am. 27 Civ. Liberties Union of N. Cal. v. Fed. Bureau of Investigation (“ACLU v. FBI”), 881 F.3d 776, 1 II. LEGAL STANDARD 2 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment 3 [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and 4 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 5 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. 6 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The mere existence of a 7 scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could 8 reasonably find for the [nonmoving party].” Id. at 252. At the summary judgment stage, evidence 9 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences 10 are to be drawn in the nonmovant’s favor. See id. at 255.3 11 FOIA is animated by “the fundamental principle of public access to Government 12 documents.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1989). It is “broadly 13 conceived,” and “disclosure, not secrecy” is its dominant objective. Id. at 151–52. At the same 14 time, Congress has exempted some information “under clearly delineated statutory language.” Id. 15 at 152 (citing Dep’t of Air Force v. Rose, 425 U.S. 352, 360–61 (1976)). These exemptions are 16 “limited” and “must be narrowly construed.” Rose, 425 U.S. at 361. “Furthermore, ‘the burden is 17 on the agency to sustain its action.’” John Doe Agency, 493 U.S. at 152 (citing 5 U.S.C. § 18 552(a)(4)(B)). In other words, “[g]iven FOIA’s overarching purpose, ‘the strong presumption in 19 favor of disclosure places the burden on the agency to justify the withholding of any requested 20 documents.’” Civil Beat Law Ctr. for the Pub. Int., Inc. v. Centers for Disease Control & 21 Prevention, 929 F.3d 1079, 1084 (9th Cir. 2019) (citing U.S. Dep’t of State v. Ray, 502 U.S. 164, 22 173 (1991)). 23 The Ninth Circuit has observed that “[g]enerally, FOIA cases should be handled on 24 motions for summary judgment.” Lane v. Dep’t of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) 25 3 Evidence may be presented in a form that is not admissible at trial so long as it could ultimately 26 be capable of being put in admissible form. See Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be 27 admissible in evidence”); Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 1 (quoting Miscavige v. IRS, 2 F.3d 366, 369 (11th Cir.1993)); see also Animal Legal Def. Fund v. 2 U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (“Most FOIA cases are resolved by 3 the district court on summary judgment.”). Given the limited nature of discovery typically 4 permitted in FOIA cases, district courts routinely “enter summary judgment on the basis of agency 5 affidavits.” Lane, 523 F.3d at 1134. Reliance on government affidavits is permissible “so long as 6 the affiants are knowledgeable about the information sought and the affidavits are detailed enough 7 to allow the court to make an independent assessment of the government’s claim.” Id. at 1135–36 8 (quoting Lion Raisins, Inc. v. U.S. Dep’t of Agric., 354 F.3d 1072, 1079 (9th Cir. 2004)); see also 9 Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 772 (9th Cir. 2015) (“[W]e also give considerable 10 deference to agency affidavits made in apparent good faith where the affidavits reasonably 11 describe the justifications for nondisclosure and show that the content withheld falls within one of 12 FOIA’s exemptions.”). “Ultimately, an agency’s justification for invoking a FOIA exemption is 13 sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. C.I.A., 473 F.3d 370, 374–75 (D.C. Cir. 14 2007). In order to satisfy this burden, government declarations in support of withholding “must 15 describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the 16 information withheld logically falls within the claimed exemptions, and show that the 17 justifications are not controverted by contrary evidence in the record or by evidence of bad faith.” 18 Hamdan, 797 F.3d at 769. 19 III. DISCUSSION 20 This order will address, in turn, Plaintiffs’ contention that Defendants’ redactions and 21 withholdings under Exemptions 7(E) and 5 are improper. 22 A. Exemption 7(E) 23 Exemption 7(E) protects from disclosure

24 “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement 25 records or information . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or 26 would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk 27 circumvention of the law.” 1 accomplishing a desired aim,” a “procedure” is “a particular way of doing or of going about the 2 accomplishment of something,” and a “guideline” is “an indication or outline of future policy or 3 conduct.” Allard K. Lowenstein Int’l Hunan Rts. Project v. Dep’t of Homeland Sec., 626 F.3d 4 678, 682 (2d Cir. 2010) (quoting Webster’s Third New International Dictionary (1986)). The 5 statutory requirement that the government show disclosure “‘could reasonably be expected to risk 6 circumvention of the law’ applies only to guidelines for law enforcement investigations or 7 prosecutions, not to techniques and procedures.” Am. Civ. Liberties Union of N. Cal. v. U.S. Dep’t 8 of Justice (“ACLU v. DOJ”), 880 F.3d 473, 491 (9th Cir. 2018) (emphasis added) (citing Hamdan, 9 797 F.3d at 778 and Allard K. Lowenstein Int’l Human Rts. Proj., 626 F.3d at 681). 10 “[T]echniques and procedures” refers to “how law enforcement officials go about 11 investigating a crime.” Allard K. Lowenstein Int’l Hunan Rts. Project, 626 F.3d at 682. The 12 Ninth Circuit has repeatedly held that “Exemption 7(E) only exempts investigative techniques not 13 generally known to the public.” ACLU v. DOJ, 880 F.3d at 491 (quoting Rosenfeld v. U.S. Dep’t 14 of Justice, 57 F.3d 803, 815 (9th Cir. 1995). Moreover, if a record discusses “the application of [a 15 publicly known technique] to . . . particular facts,” the document is not exempt under 7(E); if it 16 “describes a ‘specific means . . . rather than an application’ of deploying a particular investigative 17 technique, the record is exempt.” Id. (quoting Hamdan, 797 F.3d at 777–78). Likewise, records 18 that provide a “‘detailed, technical analysis of the techniques and procedures used to conduct law 19 enforcement investigations’ may properly be withheld under Exemption 7(E).” Id. (quoting 20 Bowen v. U.S. Food and Drug Admin., 925 F.2d 1225, 1228–29 (9th Cir. 1991)). 21 Considering these standards, the Court reviewed the documents at issue in camera and 22 determined that Exemption 7(E) applies as follows: 23 1. CBP Documents 24 Document Application of Exemption 7(E) 25 Policy on Operational Use of Exemption 7(E) does not apply because the redacted portions 26 Social Media (the “Policy”) are simply procedures for obtaining authorization to use masked monitoring and undercover engagement. This 27 (CBP 125-136) information cannot reasonably be expected to risk circumvention of the law. See ACLU v. DOJ, 880 F.3d at 492 Document Application of Exemption 7(E) 1 obtaining location information” and “provid[ing] instructions 2 to investigators and prosecutors regarding how to lawfully obtain electronic location information . . . provide no 3 information that would assist criminals in conforming their behavior to evade detection or circumvent the law”). 4 CBP is instructed to re-produce the Policy without 5 redactions within fourteen (14) days of this order. 6 Information Issue Papers; CBP Exemption 7(E) applies because the redacted portions of these 7 Use of Social Media Papers; documents “describe a ‘specific means . . . of deploying a Social Media Briefing Papers particular investigative technique.” ACLU v. DOJ, 880 F.3d 8 (collectively, the “Papers”) at 491 (quoting Hamdan, 797 F.3d at 777–78).

9 (CBP 1-22) 10 Privacy Threshhold Analyses Exemption 7(E) applies because the redacted portions of these 11 (PTAs) documents “describe a ‘specific means . . . of deploying a particular investigative technique.” ACLU v. DOJ, 880 F.3d 12 (CBP 23–39, 48–57, 149–60, at 491 (quoting Hamdan, 797 F.3d at 777–78). 13 296–306, 337–48, 349–58) These documents also contain the names and descriptions of 14 “investigative techniques not generally known to the public.” Id. 15 Social Media Use Templates Exemption 7(E) applies because the redacted portions of these 16 (SMOUTs) documents refer to “investigative techniques not generally 17 known to the public.” ACLU v. DOJ, 880 F.3d at 491. (CBP 161–69, 170–77, 178– 18 91)

19 Contract Documents Exemption 7(E) applies because the redacted portions of these documents refer to “investigative techniques not generally 20 (CBP 197-249) known to the public.” ACLU v. DOJ, 880 F.3d at 491. 21 22 2. ICE Documents 23 Document Application of Exemption 7(E) 24 Visa Lifecycle Vetting Exemption 7(E) applies because the redacted portions of these Initiative (VLVI) documents “describe a ‘specific means . . . of deploying a 25 particular investigative technique.” ACLU v. DOJ, 880 F.3d 26 (ICE 1680-81) at 491 (quoting Hamdan, 797 F.3d at 777–78).

27 Open Source/Media Exploitation Document Application of Exemption 7(E) 1 (ICE 1812–13) 2 Counterterrorism and Criminal 3 Exploitation Unit Open Source/Social Media 4 Exploitation

5 (ICE 1818–26) 6 Email Communications Exemption 7(E) applies because the redacted portions of these 7 documents are a list of U.S. government oversees posts that (ICE 921, 1017) use the Visa Lifecycle Vetting Initiative (VLVI) to track non- 8 immigrant visitor’s social media. The Court concludes that this information is “a ‘specific means . . . of deploying a 9 particular investigative technique” that can be used to 10 circumvent law enforcement. ACLU v. DOJ, 880 F.3d at 491 (quoting Hamdan, 797 F.3d at 777–78). 11 Open Source Collection Tools Exemption 7(E) applies because the redacted portions of this 12 (PowerPoint presentation) document are a list of symbols ICE uses to identify specific 13 terrorist groups on social media. The Court concludes that (CBP 432–48) this information is “a ‘specific means . . . of deploying a 14 particular investigative technique” that can be used to circumvent law enforcement. ACLU v. DOJ, 880 F.3d at 491 15 (quoting Hamdan, 797 F.3d at 777–78).

16 3. USCIS Documents 17

18 Document Application of Exemption 7(E) 19 Guidance for Use of Social Exemption 7(E) applies because the redacted portions of these Media in Field Operations documents are a list of social-media-related questions asked to 20 Directorate Adjudications visa applicants under specific circumstances. The Court concludes that this information describes “a ‘specific means 21 (USCIS 1267–78) . . . of deploying a particular investigative technique” that can be used to circumvent law enforcement. ACLU v. DOJ, 880 22 Guidance for Use of Social F.3d at 491 (quoting Hamdan, 797 F.3d at 777–78). 23 Media in Syrian Refugee Adjudications by the USCIS’s 24 Refugee Affairs Division

25 (USCIS 2344 – 53) 26 Protecting the First Exemption 7(E) does not apply to the redactions on USCIS 27 Amendment in Social Media 1878 to USCIS 1887. These pages do not describe with any Research specificity the means of deploying any particular investigative Document Application of Exemption 7(E) 1

2 (USCIS 1878–1906) Exemption 7(E) does apply to the redactions on USCIS 1886 to USCIS 1906 because those pages “describe a ‘specific 3 means . . . of deploying a particular investigative technique.” ACLU v. DOJ, 880 F.3d at 491 (quoting Hamdan, 797 F.3d at 4 777–78).

5 USCIS is instructed to re-produce this presentation without 6 redactions on USCIS 1878 to USCIS 1885 within fourteen (14) days of this order. 7 8 B. Exemption 5 9 Exemption 5 authorizes an agency to withhold “inter-agency or intra-agency 10 memorandums or letters that would not be available by law to a party other than an agency in 11 litigation with the agency.” 5 U.S.C. § 552(b)(5). The Supreme Court has held that Exemption 5 12 encompasses records “normally privileged in the civil discovery context.” NLRB v. Sears, 13 Roebuck & Co., 421 U.S. 132, 149 (1975). “These include records that would be protected in 14 litigation by the attorney work-product, attorney-client, and deliberative process privileges.” 15 ACLU v. DOJ, 880 F.3d at 483 (quoting Sears, 421 U.S. at 150–54). 16 1. Deliberative Process Privilege 17 The Supreme Court recently reiterated that the deliberative process privilege “protects 18 from disclosure documents generated during an agency’s deliberations about a policy, as opposed 19 to documents that embody or explain a policy that the agency adopts.” U.S. Fish & Wildlife Serv. 20 v. Sierra Club, Inc., 141 S. Ct. 777, 783 (2021). More specifically, the deliberative process 21 privilege protects from disclosure “documents reflecting advisory opinions, recommendations and 22 deliberations comprising part of a process by which governmental decisions and policies are 23 formulated.” Id. (quoting Sears, 421 U.S. at 8–9). Conversely, the privilege “does not apply . . . 24 to documents that embody a final decision, because once a decision has been made, the 25 deliberations are done.” Id. The key distinction is between “predecisional, deliberative 26 documents”—which are covered by the privilege—and “documents reflecting a final agency 27 decision and the reasons supporting it”—which are not. Id. at 785–86 (citing Renegot. Bd. v. 1 “Documents are ‘predecisional’ if they were generated before the agency’s final decision 2 on the matter.” Id. at 786. Additionally, “[a] ‘predecisional’ document is one prepared in order to 3 assist an agency decisionmaker in arriving at his decision, and may include recommendations, 4 draft documents, proposals, suggestions, and other subjective documents which reflect the 5 personal opinions of the writer rather than the policy of the agency.” Lahr v. Nat’l Transp. Safety 6 Bd., 569 F.3d 964, 979 (9th Cir. 2009). 7 On the other hand, a document reflects a final agency decision and the reasons supporting 8 it if “it communicates a policy on which the agency has settled.” Id. Importantly, “[a] document 9 is not final solely because nothing else follows it” because during agency deliberations “some 10 ideas are discarded or simply languish.” Id. Instead, to determine if a document is final, Courts 11 must evaluate “whether the agency treats the document as its final view on the matter.” Id. If so, 12 the document will have “real operative effect” and will not be subject to the privilege because it 13 “reflects ‘the consummation of the agency’s decision-making process’ and not a ‘merely tentative’ 14 position.” Id. (first quoting Sears, 421 U.S. at 161; then quoting Bennett v. Spear, 520 U.S. 154, 15 177–178 (1997)). On the other hand, the document is not subject to the privilege if it “leaves the 16 agency decisionmakers ‘free to change their minds.’” Id. (quoting Grumman, 421 U.S. at 189– 17 190). 18 Documents “are ‘deliberative’ if they were prepared to help the agency formulate its 19 position.” Sierra Club, 141 S. Ct. at 786 (emphasis added). In other words, a document is 20 deliberative if it “is a part of the ‘deliberative process,’ if the disclosure of the materials would 21 expose an agency’s decision-making process in such a way as to discourage candid discussion 22 within the agency and thereby undermine the agency’s ability to perform its functions.” Lahr, 569 23 F.3d at 979–90. A document cannot be deliberative unless it is predecisional. Sierra Club, 141 S. 24 Ct. at 786. 25 The first step in the inquiry into whether materials are part of the deliberative process “is to 26 examine the context in which the materials are used.” Petroleum Info. Corp. v. U.S. Dep't of 27 Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting Wolfe v. Department of Health & Human 1 within the deliberative process privilege, materials must bear on the formulation or exercise of 2 agency policy-oriented judgment.” Id. at 1435; Habeas Corpus Res. Ctr. v. U.S. Dep't of Just., 3 2008 WL 5000224, at *1 (N.D. Cal. 2008) (“The deliberative process privilege ‘does not protect a 4 document which is merely peripheral to actual policy formation; the record must bear on the 5 formulation or exercise of policy-oriented judgment.’”) (citing Tigue v. U.S. Dep't of Justice, 312 6 F.3d 70, 80 (2d Cir. 2002) (quoting Ethyl Corp. v. EPA, 25 F.3d 1241, 1248 (4th Cir. 1994)). The 7 D.C. Circuit further explained the importance of framing the deliberative process inquiry around 8 whether a document is related to the agency’s policy-oriented judgment to the purpose of 9 Exemption 5:

10 Homing in on, and sheltering material implicating officials' exercise of judgment about policy matters secures the internal agency “give- 11 and-take” Congress meant to protect when it enacted Exemption 5. Our decisions recognize that the process of selecting among 12 alternative policies can be delicate and audience-sensitive, susceptible to distortions and vulnerable to fudging when the 13 deliberators fear or expect public reaction. Inquiring whether the requested materials can reasonably be said to embody an agency's 14 policy-informed or -informing judgmental process therefore helps us answer the “key question” in these cases: whether disclosure would 15 tend to diminish candor within an agency. 16 Petroleum Info. Corp., 976 F.2d at 1435 (citations and footnote omitted). Accordingly, “the 17 deliberative process privilege has been held to cover all ‘recommendations, draft documents, 18 proposals, suggestions and other subjective documents which reflect the personal opinions of the 19 writer rather than the policy of the agency,’ as well as documents which would ‘inaccurately 20 reflect or prematurely disclose the views of the agency.’” Nat'l Wildlife Fed'n v. U.S. Forest Serv., 21 861 F.2d 1114, 1118–19 (9th Cir. 1988) (quoting Coastal States Gas Corp. v. Department of 22 Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) 23 Considering these standards, the Court reviewed the documents at issue in camera and 24 determined that the deliberative process privilege in Exemption 5 applies as follows: 25 /// 26 /// 27 /// 1 a. CBP Documents 2 Document Application of Exemption 5 3 Privacy Threshold Analyses The deliberative process privilege applies to the redacted 4 (PTAs) portions of this document because they discuss CBP’s draft plans, policy recommendations, and pilot programs. 5 (CBP 23–39, 48–57, 149–60, 296–306, 337–48, 349–58) 6 Issue Papers The deliberative process privilege does not apply to the portions of CBP 2, 17 and 19 that list the acronyms of sub- 7 (CBP 1-22) agencies that reviewed the Social Media Working Group’s 8 draft Social Media Strategy. The redacted language identifies sub-agencies involved in the review of the draft strategy. The 9 materials are devoid of any description of the substance of the draft or the views of any of the sub-agencies (let alone “the 10 personal opinions” of any particular “writer,” see Nat’l Wildlife Fed’n, 861 F.2d at 1118). The fact that sub-agencies 11 were involved in reviewing the draft strategy cannot, at least 12 in the absence of any explanation by the government, “reasonably be said to embody [CBP’s] policy-informed or - 13 informing judgmental process[.]” Petroleum Info. Corp., 976 F.2d at 1435 (quotation marks omitted). 14

The identity of participants in a discussion of draft policy may 15 be appropriately subject to the deliberative process privilege if 16 disclosure of the fact of a participant’s involvement “would tend to diminish candor within an agency.” Id. It is 17 Defendants’ burden to make such a showing in order to assert the deliberative process privilege under Exemption 5 and 18 overcome FOIA’s “strong presumption in favor of 19 disclosure[.]” Civil Beat Law Ctr., 929 F.3d at 1084. Defendants have not met their burden here. They provide no 20 rationale for why the disclosure that sub-agencies within DHS were involved in reviewing DHS’s draft policy for Social 21 Media Strategy would chill honest discussion within the agency. And the redacted materials are certainly not based 22 upon “personal opinions” of an agency official. National 23 Wildlife Fed’n, 861 F.22d at 1118.

24 Defendants’ Vaughn Index asserts the deliberative process privilege for these materials principally to protect 25 “[d]escriptions of analyses” and “[d]escriptions of content and status of a draft . . . report.” Docket No. 127-1. The 26 government does not justify why the fact of the participation 27 of particular sub-agencies in the review of the draft policy is privileged. Indeed, elsewhere in these same materials, Document Application of Exemption 5 1 Task Force, collaboration between the Task Force, CBP and 2 DHS Oversight bodies, and the creation of a CBP-wide working group to assess social media strategy. CBP 2-3, 16- 3 17. Defendants fail to explain why the nature of the redacted information is different from the information Defendants 4 already disclosed about sub-agency involvement in the crafting of the Social Media Strategy. Defendants do not 5 describe why the fact of the involvement of the sub-agencies 6 mentioned in CBP 2, 17 and 19 warrant exemption under the deliberative process privilege. Thus, the deliberative process 7 privilege does not apply.

8 CBP is instructed to remove redactions from the following text at CBP 2, 17 and 19 within fourteen (14) days of this 9 order: 10 CBP 2 and 19: Remove redactions from the 11 following: “The Social Media Working Group drafted a Social Media Strategy which has been reviewed and 12 signed by OI, OFO, USBP, AMO, PDO, OIT, OPR, and OTD and is currently under final review with CBP 13 OCC. This draft strategy proposes paths forward to 14 advance the operational use of social media”

15 CBP 17: Remove redactions from the following: “The Social Media Working Group drafted a Social Media 16 Strategy, which has been reviewed by OI, OFO, 17 USBP, AMO, PDO, OIT, OPR and OTD” and “This draft strategy highlights the areas of focus and 18 proposes paths forward to advance the operational use of social media” 19 The deliberative process privilege applies to the remaining 20 redacted portions of this document because they discuss 21 CBP’s draft plans, policy recommendations, and pilot programs. 22 23 b. ICE Documents 24 Document Application of Exemption 5 25 Contract Email The deliberative process privilege applies to the redacted portions of this document, which appear to be draft language 26 (ICE 62-63) for a potential contract for a particular project. 27 Tasking Request Emails The deliberative process privilege applies to the redacted Document Application of Exemption 5 1 (ICE 1012–14) recommendations for inclusion in a request for information to 2 develop an internal briefing paper regarding DHS’s use of Facebook data. The redacted emails relate to an internal 3 request for information in order to develop an internal briefing. 4 The documents in question are unlike early-stage compilations 5 of facts that have been found to be insufficiently substantive 6 to qualify as “deliberative.” See Citizens for Resp. & Ethics in Washington v. U.S. Dep't of Homeland Sec., 648 F. Supp. 2d 7 152, 159 (D.D.C. 2009).

8 Procurement Sensitive: The deliberative process privilege applies to the redacted 9 Performance Work Statement portions of this entire document because it appears to be a 10 Visa Lifecycle Vetting draft of policy. Initiative 11 (ICE 596–640) 12

13 c. USCIS Documents 14 15 Document Application of Exemption 5 First Amendment Email (Subject The deliberative process privilege applies to the redacted 16 Line: “USCIS authority to portions of this email, which appear to be draft responses to collect/use social media potential questions about a USCIS policy on the use of social 17 information relating to the media. exercise of First Amendment 18 protected activities (draft).”) 19 20 (USCIS 1571) 21 Procurement Email (Subject line: USCIS reprocessed and disclosed previously redacted portions 22 “DHS procurement of SM of USCIS 1711-12. Docket No. 143-1. services in Enhanced Vetting 23 initiative”) The deliberative process applies to the remaining redacted 24 portions of these emails, which appear to include the opinions of agency officials involved in policymaking and upcoming 25 (USCIS 1711–12) decisions regarding the policy discussed, the Enhance Vetting Initiative. See Docket No. 129 § 9. 26 27 1 2. Attorney-Client Privilege 2 Not all communications with lawyers are privileged. See United States v. Martin, 278 F.3d 3 988, 999–1000 (9th Cir. 2002), as amended on denial of reh’g (Mar. 13, 2002) (citing United 4 States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996)). “Because it impedes full and free discovery 5 of the truth, the attorney-client privilege is strictly construed” to the following circumstances: “(1) 6 When legal advice of any kind is sought (2) from a professional legal adviser in his or her capacity 7 as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, 8 (6) are, at the client's instance, permanently protected (7) from disclosure by the client or by the 9 legal adviser (8) unless the protection be waived.” Id. (first quoting Weil v. Inv. Indicators, 10 Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981); then quoting 8 Wigmore, Evidence § 11 2292, at 554 (McNaughton rev.1961)); see also United States v. Plache, 913 F.2d 1375, 1379 n. 1 12 (9th Cir. 1990) (same elements). The burden is on the party asserting the privilege to establish all 13 these elements. Id. 14 Considering these standards, the Court reviewed the documents at issue in camera and 15 determined that the attorney-client privilege in Exemption 5 applies as follows: 16 a. USCIS Documents 17 Document Application of Exemption 5 18 Summary Paper The attorney-client privilege applies because the withheld 19 document is a memorandum with legal advice about potential (USCIS 1475–77) constitutional issues that might arise from USCIS’s use of 20 social media.

21 First Amendment and The attorney client privilege applies to USCIS 1571, which is Procurement Emails an email communication with legal advice about the first 22 amendment implications of USCIS’s use of social media. 23 (USCIS 1571, 1711–12) USCIS reprocessed and disclosed previously redacted portions 24 of USCIS 1711-12. Docket No. 143-1. The attorney-client privilege does not apply to USCIS 1711 to 1712 because there 25 is no legal advice at issue in those emails. As discussed above, the remaining redactions are appropriate under the 26 deliberative process privilege. 27 1 C. CBP’s Vaughn Index 2 “Specificity is the defining requirement of the Vaughn index.” Wiener, 943 F.2d at 979. It 3 “afford[s] the FOIA requester a meaningful opportunity to contest, and the district court an 4 adequate foundation to review [de novo], the soundness of the withholding.” Id. at 977; see also 5 Lahr, 569 F.3d at 989 (a Vaughn index “must be detailed enough for the district court to make a de 6 novo assessment of the government’s claim of exemption”). To serve that purpose, it must contain 7 “a particularized explanation of how disclosure of the particular document would damage the 8 interest protected by the claimed exemption.” Wiener, 943 F.2d at 977–78. “Categorical 9 description of redacted material coupled with categorical indication of anticipated consequences of 10 disclosure is clearly inadequate.” King v. Dep’t of Justice, 830 F.2d 210, 224 (D.C. Cir. 1987). 11 Similarly, “boilerplate explanations,” that do not “tailor the explanation to the specific document 12 withheld,” are insufficient and pose an “obvious obstacle to effective advocacy.” Wiener, 943 13 F.2d at 978–79. On the other hand, an agency “must disclose as much information as possible 14 without thwarting the purpose of the exemption claimed.” Citizens Comm’n on Human Rts. v. 15 Food & Drug Admin., 45 F.3d 1325, 1328 (1995); see also Hamdan, 797 F.3d at 775 (“Wiener 16 demands that the government disclose what it can without ‘thwarting the claimed exemption’s 17 purpose.’” (quoting Weiner, 943 F.2d at 979)). 18 Plaintiffs bring a general challenge to CBP’s Vaughn index because it “repeats non- 19 specific recitations of the standard for the FOIA exemptions at issue, followed by multiple non- 20 specific bullets drawn from a master list of reasons for withholding content that are set forth in 21 [Mr. Howard’s declaration].” Pls.’ Mot. at 33. Indeed, the CBP’s Vaughn index is unworkable. 22 That being said, after conducting an in camera review of the documents, the Court need not ask 23 CBP to update its Vaughn index in order to rule on the parties’ disputes. 24 /// 25 /// 26 /// 27 /// 1 IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS in part and DENIES in part the parties 3 cross-motions for summary judgment. Defendants are instructed to produce unredacted versions 4 of certain documents identified above within fourteen (14) days of this order. 5 This order disposes of Docket Nos. 98 and 108. 6 7 IT IS SO ORDERED. 8 9 Dated: September 22, 2021 10 ______________________________________ EDWARD M. CHEN 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27