Gatore v. U.S. Dep't of Homeland Sec.

292 F. Supp. 3d 486
CourtCourt of Appeals for the D.C. Circuit
DecidedJanuary 4, 2018
DocketCivil Action No. 15–459 (RBW)
StatusPublished
Cited by5 cases

This text of 292 F. Supp. 3d 486 (Gatore v. U.S. Dep't of Homeland Sec.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gatore v. U.S. Dep't of Homeland Sec., 292 F. Supp. 3d 486 (D.C. Cir. 2018).

Opinion

REGGIE B. WALTON, United States District Judge

The plaintiffs initiated this civil action against the defendant, the United States Department of Homeland Security, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2012), seeking, inter alia, portions of documents termed "assessments to refer" ("assessments") prepared *488by asylum officers in connection with the individual plaintiffs' asylum applications. See generally Amended Complaint ("Am. Compl."). Currently pending before the Court is the Defendant's Renewed Motion for Summary Judgment ("Def.'s Renewed Mot."), which seeks, inter alia, summary judgment as to the individual plaintiffs' requests for their assessments. See Def.'s Renewed Mot. at 1. Upon careful consideration of the parties' submissions,1 the Court concludes that it must conduct an in camera review of the assessments in order to resolve the defendant's motion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Catholic Charities submitted FOIA requests to the defendant on behalf of each of the eight individual plaintiffs, requesting, inter alia, the assessments prepared by an asylum officer after interviewing each plaintiff in connection with his or her pending application for asylum in the United States. See, e.g., Am. Compl. ¶¶ 10, 12; see also Def.'s Facts ¶¶ 1-8. Although the defendant initially disclosed some documents in response to the individual plaintiffs' FOIA requests, see Supp. Eggleston Decl. ¶ 12, it withheld in full the assessments prepared in each of the individual plaintiffs' cases, see, e.g., Am. Compl. ¶ 12; see also Supp. Eggleston Decl. ¶¶ 11-12. Consequently, the plaintiffs filed suit, alleging that "the first several paragraphs" of each assessment were reasonably segregable and that the defendant's failure to release those paragraphs violated the FOIA. See, e.g., Am. Compl. ¶¶ 11, 35.

On July 28, 2015, the defendant initially moved for summary judgment as to the individual plaintiffs' claims regarding their requests for production of their asylum assessments, asserting that it had properly withheld the assessments in their entirety pursuant to Exemption 5 of the FOIA, in particular, the deliberative process privilege. See Def.'s 1st Summ. J. Mem. at 7. In support of its position, the defendant relied on a declaration from Jill A. Eggleston, the Assistant Center Director in the FOIA and Privacy Act Unit of the National Records Center of the United States Citizenship and Immigration Services ("USCIS"), see Eggleston Decl. ¶ 1, which concluded, in part, that

[t]he factual portions of the assessment[s] to refer cannot be severed or segregated from [their] context and thus must remain exempt from disclosure.
*489The factual distillation[s] in the assessment[s] to refer do[ ] not purport to be a verbatim transcript of [each of] the plaintiffs' asylum interviews. Rather, they reflect a selective recording of information the USCIS asylum officers deemed particularly pertinent to [the] plaintiffs' requests for asylum. As such, the assessment[s] to refer [ ] contain[ ] factual matter that cannot be severed from its context and is exempt from disclosure pursuant to Exemption 5 of the FOIA[,]

id. ¶ 18 (citations omitted).

In a memorandum opinion issued on April 6, 2016, the Court denied the defendant's initial summary judgment motion, due to several concerns reiterated below with the defendant's position that no part of the assessments was reasonably segregable:

First, the Eggleston Declaration discusses the segregability of the assessments in a categorical fashion, as opposed to providing a description of the assessments prepared in each of the individual plaintiffs' cases. See Eggleston Decl. ¶¶ 17, 19, 20 (discussing the assessments in general). The Court is therefore unable to conduct a de novo assessment of the agency's determination of segregability as to each of the individual plaintiffs' requests. 5 U.S.C. § 552(a)(4)(B) (upon judicial review, "the court shall determine the matter de novo ...."). Second, the defendant's representation that it conducted a "line-by-line examination" of each of the assessments to determine whether any portions were reasonably segregable, Eggleston Decl. ¶ 20, is seemingly undermined by what appears to be the defendant's blanket policy not to release any portion of an assessment, irrespective of its contents, see Pls.' Suppl. Partial Summ. J. Mem., Ex. A at 1, 2 (indicating that assessments should be withheld in full)....
The courts in Gosen v. U.S. Citizenship and Immigration Services, 118 F.Supp.3d 232 (D.D.C. 2015), and Abtew v. U.S. Department of Homeland Security, 47 F.Supp.3d 98 (D.D.C. 2014), aff'd 808 F.3d 895 (D.C. Cir. 2015), which both involved the same type of assessment at issue here, ordered the defendant to provide the withheld assessments for in camera review and thereafter concluded that some portions were reasonably segregable. See Gosen, 118 F.Supp.3d at 243 ("The Court has reviewed the documents in question and finds that there is at least some factual material that may not expose the deliberative process. For example, both assessments begin with factual introductory information."); Abtew, 47 F.Supp.3d at 114 ("After reviewing the Assessment in camera, the Court concludes that the first six paragraphs simply recite and summarize the facts that [the] plaintiff presented to the [asylum officer] during his asylum application interview. Those paragraphs do not include any analysis or impressions, and they do not reflect the [asylum officer's] deliberative process: although the document does not purport to be a verbatim rendition of the interview, and there may have been some streamlining involved, the summary does not involve the sort of culling of facts from a large universe that could be characterized as deliberative." (citing Ancient Coin Collectors [Guild v. U.S.

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292 F. Supp. 3d 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gatore-v-us-dept-of-homeland-sec-cadc-2018.