20-3837 Knight v. USCIS et al.
In the United States Court of Appeals For the Second Circuit
August Term, 2021 No. 20-3837
KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiff-Appellee,
v.
UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF STATE, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants-Appellants,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendants.
On Appeal from the United States District Court for the Southern District of New York
ARGUED: JANUARY 6, 2022 DECIDED: APRIL 6, 2022 Before: JACOBS, RAGGI, and NARDINI, Circuit Judges.
Defendants-Appellants United States Citizenship and Immigration Services, United States Department of State, and United States Immigration and Customs Enforcement appeal from three orders of the district court requiring them to produce documents in response to requests from Plaintiff-Appellee the Knight First Amendment Institute at Columbia University under the Freedom of Information Act. The district court (Andrew Carter, J.) ordered disclosure of three sets of documents: (1) portions of Volume 9 of the Foreign Affairs Manual; (2) the questions that are used to determine whether to apply the “Terrorism Related Inadmissibility Ground” to applicants for immigration benefits; and (3) a memo titled “ICE Ability to Use 212(a)(3)(C) Foreign Policy Charge.” We hold that the Department of State and United States Citizenship and Immigration Services properly withheld the first two sets of documents under FOIA Exemption 7(E). We therefore REVERSE the orders of the district court requiring disclosure of those materials. With respect to the third, it is unclear whether the agency has already complied fully with the district court’s order, in which case its appeal would be moot. Accordingly, we REMAND to allow the parties to further develop the record.
CATHERINE CRUMP (Megan Graham, Samuelson Law, Technology & Public Policy Clinic, U.C. Berkeley School of Law, Berkeley, CA, Xiangnong Wang, Carrie DeCell, Alex Abdo, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, on the brief), Samuelson Law, Technology & Public Policy Clinic, U.C. Berkeley School of Law, Berkeley, CA, for Plaintiff-Appellee.
ELLEN BLAIN, Assistant United States Attorney (Sarah S. Normand, Benjamin H. Torrance, Assistant United States Attorneys on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Defendants- Appellants.
WILLIAM J. NARDINI, Circuit Judge:
The Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”),
enacted in 1966, allows citizens to find out what their government is
up to. FOIA embodies a strong policy in favor of disclosing materials
in response to citizens’ requests. In some circumstances, though,
Congress has determined that other interests—such as personal
privacy, national security, or foreign policy—outweigh the need for
transparency. These circumstances are embodied by a limited set of
3 statutory exemptions from FOIA’s disclosure requirements. This case
requires us to determine the scope of one such exemption.
Defendants-Appellants United States Citizenship and
Immigration Services (“USCIS”), United States Department of State
(“DOS”), and United States Immigration and Customs Enforcement
(“ICE”) appeal from three orders of the United States District Court
for the Southern District of New York (Andrew Carter, J.) entered on
September 13, 2019, September 23, 2019, and September 13, 2020,
requiring them to produce certain documents in response to FOIA
requests from the Knight First Amendment Institute at Columbia
University (“Knight”). Knight requested documents concerning the
agencies’ interpretation and implementation of provisions of the
Immigration and Nationality Act (“INA”) that allow exclusion of
aliens from the United States based on the aliens’ connections to or
endorsement of terrorist activity. The parties have resolved several
of Knight’s requests, leaving only three sets of documents at issue on
4 appeal: (1) portions of Volume 9 of the Foreign Affairs Manual; (2) the
questions that USCIS uses to determine whether to apply the
“Terrorism Related Inadmissibility Ground” to applicants for
immigration benefits; and (3) an ICE memo titled “ICE Ability to Use
212(a)(3)(C) Foreign Policy Charge.” We hold that DOS and USCIS
properly withheld the first two sets of documents under FOIA
Exemption 7(E). With respect to the third, the record is unclear as to
whether ICE has already complied fully with the district court’s
order, which would render its appeal moot. We therefore remand for
further proceedings on that issue.
BACKGROUND
I. Knight’s Freedom of Information Act Request
The INA governs immigration and citizenship in the United
States. See 8 U.S.C. ch. 12. Section 212 of the INA excludes from
admission to the U.S. any alien who “endorses or espouses terrorist
activity or persuades others to endorse or espouse terrorist activity or
5 support a terrorist organization[,]” 8 U.S.C. § 1182(a)(3)(B)(i)(VII), or
who is “a representative . . . of . . . a political, social, or other group
that endorses or espouses terrorist activity[,]” id.
§ 1182(a)(3)(B)(i)(IV)(bb) (together, the “endorse-or-espouse
provisions”). The INA also excludes aliens whose admission the
Secretary of State “has reasonable ground to believe would have
potentially serious adverse foreign policy consequences for the
United States.” Id. § 1182(a)(3)(C)(i) (the “foreign-policy provision”).
An alien is not excludable “because of the alien’s past, current, or
expected beliefs, statements, or associations . . . [that] would be lawful
within the United States, unless the Secretary of State personally
determines that the alien’s admission would compromise a
compelling United States foreign policy interest.” Id.
§ 1182(a)(3)(C)(iii).
On August 7, 2017, Knight filed FOIA requests with several
executive agencies, including DOS, USCIS, and ICE. Knight asserted
6 that its FOIA requests were prompted by President Donald Trump’s
statements and executive orders related to the above-described INA
provisions. Specifically, President Trump purportedly stated his
intention to institute an “‘ideological screening test’ for admission
into the United States and said that a ‘new screening test’ involving
‘extreme, extreme vetting’ was overdue.” Joint App’x at 37 (quoting
Karen Deyoung, Trump Proposes Ideological Test for Muslim Immigrants
and Visitors to the U.S., Wash. Post (Aug. 15, 2016),
https://perma.cc/G9SCEPHT). President Trump subsequently issued
two executive orders that are at issue here: Exec. Order No. 13769, 82
Fed. Reg. 8977 (Jan. 27, 2017) and Exec. Order No. 13780, 82 Fed. Reg.
13209, 13215 (Mar. 6, 2017) (together, the “Executive Orders”).
The Executive Orders directed executive departments,
including DOS and the Department of Homeland Security (under
which USCIS and ICE fall), to develop a more robust vetting program
for immigrants entering the country. They required “the
7 development of a uniform baseline for screening and vetting
standards and procedures” and processes to “ensur[e] the proper
collection of all information necessary for a rigorous evaluation of all
grounds of inadmissibility.” Exec. Order No. 13780, 82 Fed. Reg. at
13215. 1
Knight sought several categories of records related to the way
that agencies interpreted and implemented the endorses-or-espouses
provisions and the foreign-policy provision of the INA under the
Executive Orders. The agencies released a substantial volume of
material in response to Knight’s request but withheld some
documents in whole or in part under various FOIA exemptions. For
example, USCIS produced 957 pages in their entirety but withheld 357
pages. The parties resolved most disputes about the scope of the
1President Joseph Biden revoked the Executive Orders on the first day of his administration. See Proclamation No. 10,141, 86 Fed. Reg. 7005 (Jan. 20, 2021). Knight asserts that it maintains an interest in the material it requested because of “the expanded focus on social media accounts in immigration vetting in recent years, and the Biden Administration’s active review and reconsideration of these policies.” Knight Br. at 8.
8 agencies’ withholding between themselves, and Knight filed suit
seeking an order requiring the agencies to produce a subset of the
documents about which the parties were unable to agree. Before the
district court, the parties filed cross-motions for partial summary
judgment. Three sets of records addressed in the district court’s
rulings on those motions remain at issue in this appeal: (1) portions
of Volume 9 of the Foreign Affairs Manual (“9 FAM”); (2) a set of
training slides, manuals, and guides containing questions relating to
the Terrorism Related Inadmissibility Grounds (the “TRIG
questions”); and (3) an ICE memorandum titled “ICE Ability to Use
212(a)(3)(C) Foreign Policy Charge” (the “ICE memo”).
The court addressed the 9 FAM records in its September 13,
2019, ruling on the parties’ first cross-motions for summary judgment.
It addressed the TRIG questions and the ICE memo in its September
23, 2019, ruling on the parties’ second cross-motions for summary
judgment. And it addressed the parties’ additional arguments related
9 to the 9 FAM records and TRIG questions in its September 13, 2020,
ruling on the government’s motion for clarification and
reconsideration.
A. Three Sections of the Foreign Affairs Manual
Knight requested “[a]ll Foreign Affairs Manual sections
(current and former) relating to the endorse or espouse provisions or
the foreign policy provision, as well as records discussing,
interpreting, or providing guidance regarding such sections.” Joint
App’x at 39.
DOS describes the Foreign Affairs Manual and the associated
Handbooks as
a single, comprehensive, and authoritative source for the Department’s organization structures, policies, and procedures that govern the operations of the State Department, the Foreign Service and, when applicable, other federal agencies. The FAM (generally policy) and the [Foreign Affairs Handbooks] (generally procedures) together convey codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive and Department mandates.
10 DOS, Foreign Affairs Manual and Handbook, https://fam.state.gov
[https://perma.cc/5JJC-TKC6] (last visited Mar. 22, 2022).
DOS provided relevant portions of the manual to Knight but
redacted certain sections of 9 FAM. In general, 9 FAM includes
“directives and guidance” for DOS personnel adjudicating U.S. visas.
9 FAM 101.1. DOS asserted that the redacted portions of the manual
were exempt from disclosure under Exemption 7(E). 2 Versions of
three partially redacted sections remain at issue: 9 FAM 302.6, 9 FAM
40.32, and 9 FAM 302.14.
• Eight versions of 9 FAM 302.6. DOS redacted eight versions of
9 FAM 302.6, titled “Ineligibilities Based on Terrorism Related
Grounds.” Joint App’x at 66. It asserted that the redacted
2 Exemption 7(E) excludes from the disclosure requirement “records or information compiled for law enforcement purposes [the release of which] . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E).
11 portions “disclose law enforcement investigation techniques,
procedures, and guidelines.” Id. Its Vaughn index 3 lists each
redaction and explains how the redaction falls within the
exemption. For example, “9 FAM 302.6-2(B)(1)(b). reveals
interagency cooperation procedures during the process of
checking for terrorism-related ineligibilities,” id.; and “9 FAM
302.6-2(B)(4)e. (2) and (5) gives guidelines for when spouses
and children trigger the requirement for further security
investigation and how to conduct that process,” id. at 67. DOS
concluded that “[d]isclosure of any of the above information
could reasonably be expected to risk circumvention of the law
3As we have explained: The Vaughn index procedure was developed to avoid the cumbersome alternative of routinely having a district court examine numerous multi- page documents in camera to make exemption rulings. See Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973). . . . A Vaughn index typically lists the titles and descriptions of the responsive documents that the Government contends are exempt from disclosure. In some cases detailed affidavits from agency officials may suffice to indicate that requested documents are exempt from disclosure. N.Y. Times Co. v. U.S. Dep't of Just., 758 F.3d 436, 438–39 (2d Cir.), supplemented by 762 F.3d 233 (2d Cir. 2014) (footnotes omitted).
12 because terrorists and other bad actors could use it to conceal
derogatory information, provide fraudulent information, or
otherwise circumvent the security checks put in place to ensure
that terrorists and other bad actors cannot gain visas into the
United States.” Id. at 68.
• Three versions of 9 FAM 40.32. DOS redacted three versions
of 9 FAM 40.32, which it reports are “earlier iterations of
sections that are now incorporated into 9 FAM 302.6.” Id. As
with 9 FAM 302.6, DOS provided an explanation for each
redaction. It provided the same conclusion for withholding as
with 9 FAM 302.6 (that is, disclosure could allow terrorists or
other bad actors to circumvent the law).
• One version of 9 FAM 302.14. DOS made several redactions to
one version of 9 FAM 302.14, titled “Ineligibility Based on
Sanctioned Activities.” Id. at 69. It asserted that the redacted
portions “disclose law enforcement investigation techniques,
13 procedures, and guidelines” about several topics. Id. For
example, it stated that the redacted portions included
“guidelines for conducting the security investigation process,
including whether certain procedures are mandatory, and
what information to include in a request for those procedures.”
Id.
The district court held that 9 FAM was not “‘compiled for law
enforcement purposes’ even if some sections of the FAM may serve
those purposes.” Knight First Amend. Inst. at Columbia Univ. v. U.S.
Dep’t of Homeland Sec., 407 F. Supp. 3d 311, 332 (S.D.N.Y. 2019)
(“Knight I”). Because DOS is a “mixed-function agency” performing
both administrative and law enforcement functions, the court
explained it would “‘scrutinize with some skepticism the particular
purpose claimed for disputed documents redacted under FOIA
14 Exemption 7.’” Id. (quoting Tax Analysts v. IRS, 294 F.3d 71, 77 (D.C.
Cir. 2002)). 4
First, the district court noted that some of the redacted portions
fell within the “Definitions” section of 9 FAM and that that section
appeared to derive from definitions included in the INA. Id. at 332–
33. The district court thus held that “[t]he similarity between the
withheld information and the INA’s text . . . suggests Exemption 7(E)
does not apply.” Id. at 333.
Second, DOS admitted that the FAM “generally consists of
policy.” The district court agreed, observing that “mere descriptions
of codified law and policy, even those including interpretation and
application of immigration laws and regulations, are not protected
under Exemption 7(E).” Id. at 333 (internal quotation marks and
citations omitted). Rather, “[t]o be ‘compiled for law enforcement
4 We have frequently noted the District of Columbia Circuit’s “particular FOIA expertise” and looked to its decisions for guidance in interpreting the FOIA. See, e.g., Whitaker v. Dep’t of Commerce, 970 F.3d 200, 206 & n.25 (2d Cir. 2020).
15 purposes,’ the information must go a step further and describe
‘proactive steps’ for preventing criminal activity and maintaining
security.” Id. (quoting Milner v. Dep’t of the Navy, 562 U.S. 562, 582
(2011) (Alito, J., concurring)).
Finally, the court noted that some records appeared to contain
“interpretive information” which DOS characterized as “guidelines,”
and held that this type of interpretive document falls outside of
Exemption 7(E). Id. For example, DOS’s description of 9 FAM 302.6-
3(B) explained that it included “guidelines for situations in which an
individual may cease to be inadmissible.” Id. (internal quotation
marks omitted). The court held that it was not clear “how explaining
to the public what may constitute grounds for inadmissibility—
essentially a legal interpretation—may potentially help an individual
circumvent the law.” Id.
16 Based on the above conclusions, the district court ordered
disclosure of the unredacted versions of the three 9 FAM sections at
issue. Id.
B. Terrorism-Related Inadmissibility Ground Questions
Next, Knight requested “[a]ll records containing policies,
procedures, or guidance regarding the application or waiver of the
endorse or espouse provisions or the foreign policy provision.” Joint
App’x at 39. In response, USCIS disclosed several presentation slides,
training manuals, and other guides. In some documents, USCIS
redacted “model or sample questions for immigration officers to use
when screening applicants.” Id. at 552. The questions are intended to
help determine, for example, “whether an applicant provides
material support for terrorism, and to determine whether an
applicant provides support to a terrorist organization under duress.”
Id. The agency explained that the process for asking the questions is
dynamic. The withheld material includes not only “TRIG specific
17 model questions that USCIS immigrations officers should ask when
interviewing applicants,” but also “follow-up questions that
immigration officers should ask when they spot issues in testimony
that could trigger a TRIG bar.” Joint App’x at 181–82.
USCIS asserted that the TRIG questions “reflect specialized
methods that USCIS has refined through its decades of enforcing
United States immigration laws.” Id. The agency asserted that the
TRIG questions were therefore exempt from disclosure under
Exemption 7(E).
The district court concluded that the TRIG questions were not
“special or technical.” Knight First Amend. Inst. at Columbia Univ. v.
U.S. Dep’t of Homeland Sec., 407 F. Supp. 3d 334, 353 (S.D.N.Y. 2019)
(“Knight II”). It also explained that those questioned using the TRIG
questions would necessarily learn the questions, and “USCIS
submit[ted] no evidence suggesting its methods are so special that
interviewees cannot parrot them to whomever they choose.” Id. at
18 354. The court therefore concluded that Exemption 7(E) did not
apply. Id.
C. Memorandum Titled “ICE Ability to Use 212(a)(3)(C) Foreign Policy Charge”
Knight made several requests for legal or policy memoranda
related to the foreign policy provision. ICE identified as responsive a
memorandum titled “ICE Ability to Use 212(a)(3)(C) Foreign Policy
Charge.” It redacted the memorandum in full except for the title.
ICE stated that the memorandum “contains information
protected by the attorney-client privilege. The materials reflect
opinions, analysis, guidance and legal advice provided by attorneys
in the ICE Office of the Principal Legal Advisor (OPLA), regarding a
particular section of the INA.” 5 Joint App’x at 249. In a separate
declaration submitted in support of summary judgment, ICE
supplemented its description, further stating that the memo “includes
5ICE initially claimed attorney-client privilege over the memo but withdrew that assertion during summary judgment proceedings. Appellants’ Br. at 13 n.4.
19 a brief summary with notes and quotes for determining whether
Section 212(a)(3)(C) can be used by the Secretary of State as grounds
for inadmissibility.” Joint App’x at 563. It asserted that “th[e]
document did not bind the agency[,]” was “not organized like typical
ICE memoranda[,] and [was] not signed by or formally addressed to
ICE leadership. The memorandum simply supplie[d] factors for
consideration while providing analysis on whether the Secretary of
State should use Section 212(a)(3)(C) Foreign Policy Charge to render
an alien inadmissible under the INA.” Id. Thus, ICE withheld the
memo under Exemption 5 and the deliberative process privilege. 6
The district court found that ICE had failed to establish that the
ICE memo was subject to the deliberative process privilege through
Exemption 5. Specifically, the court found the document was not
“pre-decisional” because ICE did not show that the memo “‘formed
6Exemption 5 provides that disclosure is not required for “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).
20 an essential link in a specific consultative process, reflects the
personal opinions of the writer rather than the policy of the agency,
[or] if released would inaccurately reflect or prematurely disclose the
views of the agency.’” Knight II, 407 F. Supp. 3d at 345 (quoting
Brennan Ctr. for Just. at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Just., 697
F.3d 184, 202 (2d Cir. 2012) (emphasis added by district court)). The
memo appeared “more akin to opinions regarding how to interpret
policy rather than recommendations as to how to make policy.” Id. It
was therefore “post-decisional explanation” rather than “pre-
decisional advice” and fell outside of Exemption 5. Id. (internal
quotation marks omitted). The district court therefore directed ICE to
“disclose reasonably segregable portions of [the ICE memo] that
reflect current immigration policy.” Id. at 345–46.
D. Motion for Reconsideration
After the district court decided Knight I and Knight II, DOS and
USCIS moved for reconsideration and clarification of the court’s
21 decisions with respect to 9 FAM and the TRIG questions, respectively.
Knight First Amendement Inst. at Columbia Univ. v. U.S. Dep’t of
Homeland Sec., No. 1:17-CV-7572, 2020 WL 5512540, at *6 (S.D.N.Y.
Sept. 13, 2020) (“Knight III”). The agencies requested clarification as
to whether the district court intended to order immediate disclosure
of the records, or to provide the agencies an opportunity to further
justify the application of Exemption 7(E). Id. at *6. In the event that
the court intended to require immediate disclosure, the agencies
asked the court to reconsider and instead review the documents in
camera. Id.
The court clarified that it intended to order immediate
disclosure of the Exemption 7(E) documents and declined the
invitation to conduct in camera review. Id. at *7–*8. It explained that
“DOS and USCIS submitted sufficiently detailed justifications for
withholding the FAM sections and TRIG questions respectively,” but
22 that it “understood the agencies’ arguments and was not persuaded.”
Id. at *8.
DISCUSSION
We review the grant of summary judgment de novo. See Long v.
Off. of Pers. Mgmt., 692 F.3d 185, 191 (2d Cir. 2012).
FOIA is premised on “a policy strongly favoring public
disclosure of information in the possession of federal agencies.”
Halpern v. F.B.I., 181 F.3d 279, 286 (2d Cir. 1999). Agencies are
required to disclose requested documents unless they fall within an
enumerated exemption. Id. at 286–87. “In order to prevail on a
motion for summary judgment in a FOIA case, the defending agency
has the burden of showing . . . that any withheld documents fall
within an exemption to the FOIA.” Carney v. U.S. Dep’t of Just., 19 F.3d
807, 812 (2d Cir. 1994). “Summary judgment is appropriate where the
agency declarations describe the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld
23 logically falls within the claimed exemption, and are not controverted
by either contrary evidence in the record or by evidence of agency bad
faith . . . . Thus, the agency’s justification is sufficient if it appears
logical and plausible.” Am. C.L. Union v. U.S. Dep’t of Def., 901 F.3d
125, 133 (2d Cir. 2018), as amended (Aug. 22, 2018) (cleaned up).
I. Documents Withheld under FOIA Exemption 7(E)
DOS withheld the 9 FAM records, and USCIS the TRIG
questions, under FOIA Exemption 7(E). That exemption excludes
documents from FOIA’s disclosure requirement if an agency satisfies
two conditions. First, the agency must show that the records were
“compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7).
Second, the agency must show that the records either (1) “would
disclose techniques and procedures for law enforcement investigations
or prosecutions”; or (2) “would disclose guidelines for law
enforcement investigations or prosecutions” and “such disclosure
could reasonably be expected to risk circumvention of the law.” Id. at
24 § 552(b)(7)(E) (emphasis added). Thus, to withhold “guidelines for
law enforcement,” an agency must make an additional showing that
is not required before withholding “techniques or procedures.”
A. DOS established that the 9 FAM materials are exempt from disclosure under Exemption 7(E)
Knight argues that DOS has failed to establish that the 9 FAM
materials were “compiled for law enforcement purposes” or that they
include “techniques or procedures” or “guidelines” for law
enforcement whose disclosure would risk circumvention of the law.
We disagree.
1. The 9 FAM material was compiled for law enforcement purposes
“The threshold requirement for qualifying under Exemption 7
turns on the purpose for which the document sought to be withheld
was prepared.” F.B.I. v. Abramson, 456 U.S. 615, 624 (1982). The
Supreme Court has interpreted this requirement broadly. For
example, a document initially compiled for law enforcement
purposes but later provided to a different, non-law-enforcement
25 agency may still fall within Exemption 7. Id. at 624–25. Still, an
agency that performs both administrative and law-enforcement
functions is “subject to an exacting standard when it comes to the
threshold requirement of Exemption 7.” Tax Analysts v. I.R.S., 294
F.3d 71, 77 (D.C. Cir. 2002). DOS acknowledges that it is a “mixed-
function” agency.
Knight argues that 9 FAM was not compiled for law
enforcement purposes because it was compiled “to help an agency
apply the law—in this case to process visa applications,” which is “not
a sufficient basis to conclude that the information was compiled to
enforce the law.” Knight Br. at 29 (citing United Am. Fin., Inc. v. Potter,
531 F. Supp. 2d 29, 46 (D.D.C. 2008)). But as Justice Alito has
explained, “[t]he ordinary understanding of law enforcement
includes not just the investigation and prosecution of offenses that
have already been committed, but also proactive steps designed to
prevent criminal activity and to maintain security.” Milner v. Dep't of
26 Navy, 562 U.S. 562, 582 (2011) (Alito, J., concurring). Enforcing the law
always requires a degree of analysis and application. While some
aspects of visa adjudication might fall outside the common
understanding of “law enforcement,” the provisions at issue here do
not. DOS’s explanations for its redactions clearly establish that the
redacted provisions relate to the detection of connections to terrorism.
See, e.g., Joint App’x at 67 (summarizing reason for redactions,
including “defin[ing] terrorist activity, adding specific details and
clarification about how they fit into the security investigation
process.”). The detection and prevention of terrorism are archetypal
law-enforcement purposes.
The district court concluded that the 9 FAM documents were
not compiled for law enforcement purposes because they included
“mere descriptions of codified law and policy” and “to be compiled
for law enforcement purposes, the information must go a step further
and describe proactive steps for preventing criminal activity and
27 maintaining security.” Knight I, 407 F. Supp. 3d at 333 (internal
quotation marks omitted). That view finds no support in the text of
the exemption. The threshold inquiry under Exemption 7 is the
reason for which material was compiled, and the material should be
considered as a whole rather than broken into parts and scrutinized
in isolation. While an agency’s discrete description of law and policy
might not be subject to exemption in every context, when a larger
series of descriptions is compiled to provide comprehensive guidance
to employees in the field on how to apply and enforce the laws within
the agency’s purview, that subsequent compilation enters the
potential ambit of Exemption 7(E). An agency’s compilation of laws
and policies might provide insight into its conduct and approaches to
law enforcement even if it reveals no “proactive steps.” Such
compilation might reveal the agency’s reliance on specific laws,
reflecting the use of certain techniques or the limitations on the
implementation of those techniques in the field. Certainly, records
28 that reflect only descriptions of publicly available statutes are less
likely to create a risk of “circumvention of the law” if released. 5
U.S.C. § 552(b)(7)(E). But that does not mean they were not “compiled
for law enforcement purposes” in the first instance—only that they
might not meet the requirements of Exemption 7(E) at the second
step. Here, DOS has established that 9 FAM includes specific
guidance to DOS employees on how to detect ties to terrorism. We
conclude, therefore, that it was “compiled for law enforcement
purposes” within the meaning of Exemption 7(E).
2. The 9 FAM materials would disclose techniques, procedures, or guidelines for enforcement
Knight next argues that, even if the records were “compiled for
law enforcement purposes,” some of DOS’s redactions fall outside
Exemption 7(E) because they do not cover material reflecting
techniques or procedures for law enforcement investigations or
prosecutions. Knight contends that the non-redacted portions of 9
FAM include only high-level summaries rather than techniques or
29 procedures. Some of the material “appears to consist of definitions
and explanations of statutory language.” Knight Br. at 34. And
“some of the withheld materials appear to summarize publicly
available statutes, memoranda, and directives.” Knight Br. at 36.
With each assertion, though, Knight asks us to draw inferences about
the redacted material from context that are contradicted by DOS’s
affidavits and Vaughn index. On summary judgment, we accept an
agency’s affidavits as true unless they are “controverted by either
contrary evidence in the record or by evidence of agency bad faith.”
Am. C.L. Union, 901 F.3d at 133 (internal quotation marks and
alteration omitted). Accordingly, we cannot credit Knight’s
contentions about what the 9 FAM redactions “appear” to include in
the face of an agency affidavit attesting to what they actually do
include, particularly in the absence of evidence of bad faith. In any
event, we are not persuaded that Knight’s proposed inferences from
context are reasonable. For example, Knight asserts it is “unlikely”
30 that redactions include more information than in publicly available
sources because the redactions are relatively short. Knight Br. at 37.
But DOS’s Vaughn index explicitly states that some redactions include
material that has not been publicly disclosed. See, e.g., Joint App’x at
67 (explaining that one redaction “lists credible sources of evidence
that may be used in recommending a finding, including sources that are
not public knowledge”) (emphasis added).
Knight next argues that DOS’s Vaughn index describes the
redacted material as guidelines, while they now state in their brief
that it reflects techniques or procedures. “Techniques and procedures
. . . refers to how law enforcement officials go about investigating a
crime.” Allard K. Lowenstein Int'l Hum. Rts. Project v. Dep't of Homeland
Sec., 626 F.3d 678, 682 (2d Cir. 2010) (“Lowenstein Project”) (internal
quotation marks omitted). In contrast, “guidelines . . . generally refers
in the context of Exemption 7(E) to resource allocation.” Id. (internal
quotation marks omitted). While law-enforcement documents
31 revealing techniques and procedures are exempt from disclosure per
se, documents revealing guidelines are exempt only “if such
disclosure could reasonably be expected to risk circumvention of the
law.” Id. at 681.
DOS’s use of the word “guideline” in its Vaughn index is not
talismanic. Rather, we must consider the substance of the agency’s
descriptions to determine whether the redacted material contains
“techniques or procedures” or “guidelines” under FOIA. The phrase
“techniques or procedures” is not defined in the statute, and we have
not ascribed to it a hypertechnical meaning. Lowenstein Project, 626
F.3d at 682. Stated simply, “techniques or procedures” includes both
law enforcement methods—the actions that law enforcement
personnel take to identify and neutralize bad actors—as well as the
triggers for the application of methods. See, e.g., id. (describing as a
“technique or procedure” an agency’s instruction to agents to focus
on cash-based businesses for audit and investigation).
32 Here, we need not decide whether the 9 FAM material is
properly categorized as “techniques or procedures” rather than
“guidelines” for law enforcement. Even assuming the more rigorous
“guideline” standard applies, DOS has established that disclosure of
the 9 FAM material could reasonably risk circumvention of the law.
As DOS describes, the redactions to 9 FAM are targeted to those
specific provisions that delineate how DOS officials should identify
aliens who may have connections to terrorism, including some
specific triggers for additional scrutiny. Releasing this information
would allow an individual with actual terrorist ties to better tailor his
or her application to avoid detection. It does not matter, then,
whether the redactions reflect “techniques or procedures” or
“guidelines.” Exemption 7(E) would apply in either case.
Finally, Knight urges that the Vaughn index is too “vague and
conclusory” to support DOS’s withholding. Knight Br. at 40. To
justify withholding, an agency must provide “a relatively detailed
33 analysis of the withheld material in manageable segments without
resort to conclusory and generalized allegations of exemptions.”
Halpern, 181 F.3d at 290 (internal quotation marks and alteration
omitted). The agency must also “provide an indexing system that
would subdivide the withheld document under consideration into
manageable parts cross-referenced to the relevant portion of the
Government’s justification.” Id. (internal quotation marks and
alteration omitted). In Halpern, for example, we held that an agency’s
affidavit was sufficient where it provided a high-level explanation of
categories of information falling within the exemption, and then
cross-referenced each of those categories against redactions in the
requested documents. Id. at 296–98. Here, too, we conclude that DOS
satisfied its obligation to provide a detailed overview of the withheld
material. DOS’s redactions are highly targeted and discrete. See, e.g.,
Joint App’x at 128 (redacting two sentences on a page). In this context,
it would not be reasonable to expect DOS to provide more specific
34 descriptions; doing so would effectively require disclosure of the
isolated material it chose to redact. And the agency here went further
than Halpern would require, providing separate, detailed
explanations for each redaction.
In sum, we hold that DOS met its burden to establish that the
9 FAM materials were compiled for law enforcement purposes; that
they reflect techniques, procedures, or guidelines of law enforcement;
and that disclosure would reasonably risk circumvention of the law.
Accordingly, we reverse the September 13, 2019, ruling of the district
court insofar as it required DOS to disclose unredacted versions of the
9 FAM materials.
B. USCIS established that the TRIG questions are exempt from disclosure under Exemption 7(E)
We turn next to the TRIG questions. 7 The district court
concluded that the TRIG questions are not subject to Exemption 7(E),
7The district court did not address whether the TRIG questions were compiled for law enforcement purposes. Knight II, 407 F. Supp. 3d at 353. Knight does not argue
35 but USCIS argues this was error. It asserts that the TRIG questions
constitute techniques or procedures of law enforcement, and that
releasing them would enable applicants with ties to terrorism to better
tailor their answers to avoid detection. Knight responds that the
TRIG questions are not sufficiently specialized to constitute
techniques and procedures of law enforcement, that they are
effectively public given that they have been asked of many aliens
already, and that USCIS has not established that disclosure of the
TRIG questions would risk circumvention of the law. We hold that
the TRIG questions constitute “techniques or procedures” of law
enforcement, and in any event, their disclosure would reasonably risk
circumvention of the law. Our conclusion is not altered by the
possibility that some individual aliens may have been asked some or
all of the questions.
on appeal that they were not. Accordingly, we have no occasion to question whether USCIS has met its burden at the first step of analysis under Exemption 7(E).
36 The district court found that the TRIG questions were not
“techniques or procedures” because “USCIS [had] not
demonstrate[d] its methods are necessarily special or technical.”
Knight II, 407 F. Supp. 3d at 353. Knight further contends that the
government must demonstrate that the material it withholds includes
“‘specialized, calculated technique[s] or procedure[s].’” Knight Br. at 39
(quoting Am. C.L. Union Found. v. Dep’t of Homeland Sec., 243 F. Supp.
3d 393, 404 (S.D.N.Y. 2017) (“ACLU v. DHS”) (emphasis added). But
as noted earlier, the phrase “techniques or procedures” refers simply
to “how law enforcement officials go about investigating a crime.”
Lowenstein Project, 626 F.3d at 682 (defining “technique” as “a
technical method of accomplishing a desired aim”; and “procedure”
as “a particular way of doing or of going about the accomplishment
of something” (internal quotation marks omitted)). Our analysis is
not advanced by adding qualifiers that do not appear in the statute—
such as “special,” “specialized,” “technical,” or “calculated”—to
37 modify the terms “techniques or procedures.” It is not the province
of the courts to add words to statutes that Congress has enacted. To
the extent that the district court’s decision could be understood to
suggest that Exemption 7(E) covers only a subset of “techniques or
procedures,” we therefore reject such a reading of the statute. And in
any event, we do not think that any of those four adjectives materially
aids our analysis of what falls within the scope of “techniques or
procedures.” 8 The key issue in determining whether redacted
material contains “techniques or procedures” under Exemption 7(E)
is whether disclosure of that material would reveal particulars about
the way in which an agency enforces the law and the circumstances
that will prompt it to act. In Lowenstein Project, we explained, “if [an]
agency informs tax investigators that cash-based business are more
8Indeed, we have used the word “technical” parenthetically in describing the definition of “technique.” Lowenstein Project, 626 F.3d at 682, and so it would be redundant to speak of a “technical technique.” Moreover, “technical” in this context simply means “of or relating to a particular subject.” Webster’s Third New International Dictionary (1986).
38 likely to commit tax evasion than other businesses, and therefore
should be audited with particular care, focusing on such targets
constitutes a ‘technique or procedure’ for investigating tax evasion.”
626 F.3d at 682. The questions that USCIS instructs its employees to
ask visa applicants to detect ties to terrorism are more closely linked
to the specific methods employed by government actors than an
agency’s generic directive to investigate cash-based businesses. We
hold that the list of TRIG questions employed to effectuate law
enforcement purposes—to identify potential terrorists and keep them
from entering the United States—falls squarely within the scope of
the statutory phrase “techniques or procedures.”
Even if the TRIG questions were “guidelines” rather than
“techniques or procedures” of law enforcement, Exemption 7(E)
would apply because USCIS has established that disclosing the TRIG
questions would reasonably risk circumvention of the law. As
explained earlier, disclosing in advance the specific questions that
39 agents may use to suss out and evaluate connections to terrorism
would help those with terrorist ties to tailor their answers to avoid
detection. See, e.g., Heartland Alliance Nat’l Immigrant Justice Ctr. v.
Dep’t of Homeland Sec., 840 F.3d 419, 421 (7th Cir. 2016) (upholding the
application of Exemption 7(E) to a list of lower-level terrorist
organizations, the disclosure of which would allow applicants for
immigration benefits to conceal ties to those organizations); Ibrahim v.
Dep’t of State, 311 F. Supp. 3d 134, 143 (D.D.C. 2018) (upholding the
application of Exemption 7(E) to “USCIS’s Refugee Application
Assessment” because “[t]he lines of questions recorded in the
Assessment highlight circumstances that would have raised national
security and public safety concerns,” and its disclosure “could
reasonably be expected to risk circumvention of the law by enabling
applicants for refugee status to plan strategic but inaccurate
answers”).
40 Finally, Knight asserts, as the district court held, that even if the
questions could be considered “techniques or procedures” for
purposes of Exemption 7(E), they are no longer exempt because they
have been publicly disclosed. See Inner City Press/Cmty. on the Move v.
Bd. of Governors of the Fed. Rsrv. Sys., 463 F.3d 239, 249 (2d Cir. 2006).
The burden of establishing prior public disclosure is on the requester.
Id. Knight asserts that it has carried its “burden of production” by
pointing out that the TRIG questions “become known to applicants
when the questions are asked in interviews or mailed to them in
Requests for Evidence.” Knight Br. at 45. 9 But as we have explained,
“[t]he Supreme Court has limited the public domain exception to
9Knight invokes the district court’s reasoning in ACLU v. DHS, asserting that when an agency has a “practice of asking the questions at issue,” it incurs an additional burden to “justify its assertion that . . . [the questions are] not already known to the public.” Knight Br. at 46 (quoting ACLU v. DHS, 243 F. Supp. 3d at 402). We reject any such rule. A FOIA requester bears the burden of production on the question of whether material is “publicly available.” Inner City Press, 463 F.3d at 245. As we explain above, the mere fact that an agency asks certain questions to certain individuals does not satisfy the requester’s burden of production, because it does not satisfy the threshold showing that such questions are available to the general public.
41 information that is ‘freely available.’” Inner City Press, 463 F.3d at 244
(quoting U.S. Dep't of Just. v. Reps. Comm. for Freedom of Press, 489 U.S.
749, 764 (1989)). Thus, to meet this prior-disclosure burden, “the
requesting party ‘must . . . point[ ] to specific information in the public
domain that appears to duplicate that being withheld.’” Id. at 249
(quoting Afshar v. U.S. Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir.
1983) (alterations in original)). In the FOIA context, information is in
the public domain if it is generally available to the public at large, not
simply if it happens to be known by select members of the public. See
U.S. Dep't of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 764
(1989) (distinguishing between information “restricted to . . . a
particular person or group of class of persons” and information
“freely available to the public”). The latter is the case here. Perhaps
an enterprising researcher could identify a pool of visa applicants,
collect information about what they were asked, and then compile a
list of common questions they faced. Though doubtful, let us further
42 assume that our imaginary researcher would also be able to intuit
which questions had been posed to ferret out possible terrorists and
therefore must be on the TRIG list. Even if all of this might
conceivably be achieved, the necessity of the reconstruction exercise
itself demonstrates that the information in question is not in the
public domain. See, e.g., Davis v. U.S. Dep’t of Just., 968 F.2d 1276, 1280
(D.C. Cir. 1992) (holding FOIA requester failed to show public
disclosure by pointing to newspaper accounts establishing that
government played tape recordings at trial; rather, requester had
“burden of showing that there is a permanent public record of the
exact portions” sought to be disclosed); Bishop v. U.S. Dep’t of
Homeland Sec., 45 F. Supp. 3d 380, 391 (S.D.N.Y. 2014) (“[C]ourts have
acknowledged that Exemption 7(E) applies even when the identity of
the techniques has been disclosed, but the manner and circumstances
of the techniques are not generally known, or the disclosure of
additional details could reduce their effectiveness.” (internal
43 quotation marks omitted)); Barouch v. United States Dep’t of Just., 87 F.
Supp. 3d 10, 30 n.13 (D.D.C. 2015) (upholding the application of
Exemption 7(E) to material showing the “questioning techniques
used by ATF agents and local law enforcement agents” because
“disclosure would hinder future use of these tactics” (internal
quotation marks omitted)). Put another way, the possibility that a
savvy law-evader might be able to infer the substance of some
withheld documents by carefully observing an agency’s actions does
not remove those documents from the ambit of Exemption 7(E). 10
For these reasons, we conclude that USCIS properly withheld
the TRIG Questions under Exemption 7(E). Those questions
constitute techniques or procedures of law enforcement. We
therefore reverse the September 23, 2019, ruling of the district court
10That is particularly so where, as here, the withheld material does not include a single script that a motivated observer could discern. The agency instructs its agents to use the TRIG questions dynamically: they may be scrambled, added, removed, or rephrased in response to the specific situation that agents face.
44 to the extent that it required USCIS to disclose material reflecting the
TRIG Questions.
II. Documents Withheld under FOIA Exemption 5
ICE withheld under Exemption 5 a memo titled “ICE Ability to
Use 212(a)(3)(C) Foreign Policy Charge.” The agency emphasizes that
the memo was a draft, that it was not binding, and that it reflected the
views of the individual author rather than the agency. ICE argues
that the district court erred in holding that the ICE memo was not
subject to the deliberative process privilege through Exemption 5.
That exemption excludes from FOIA’s disclosure requirement “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). “By this language, Congress intended
to incorporate into the FOIA all the normal civil discovery privileges,”
including the deliberative process privilege. Hopkins v. U.S. Dep't of
Hous. & Urb. Dev., 929 F.2d 81, 84 (2d Cir. 1991). A record is protected
45 by the deliberative process privilege if it is (1) “predecisional, that is,
prepared in order to assist an agency decisionmaker in arriving at his
decision”; and (2) “deliberative, that is, actually related to the process
by which policies are formulated.” Id. (cleaned up). “[T]he
deliberative process privilege protects only those records that bear on
the formulation or exercise of policy-oriented judgment.” Nat. Res.
Def. Council v. U.S. E.P.A., 19 F.4th 177, 184–85 (2d Cir. 2021) (internal
quotation marks omitted). But the agency need not point to a specific
decision that it was facing for which the document was prepared—it
is enough that the record is connected to “a specific decisionmaking
process.” Id. at 192.
It appears that ICE’s appeal with respect to the ICE memo
might be moot, but the record is unclear. Although the district court
concluded that the ICE memo did not fall within Exemption 5 because
it was not pre-decisional, Knight II, 407 F. Supp. 3d at 345, it did not
order immediate disclosure of the memo. Rather, it directed ICE to
46 “re-assess its applied exemptions” using the district court’s opinion
as a guide “and disclose all responsive non-exempt materials that can
reasonably be segregated from exempt materials.” Id. at 355. The
record does not reveal whether or when ICE conducted the ordered
segregability analysis. At oral argument, counsel for ICE stated that
the agency had conducted a review and determined that no material
was reasonably segregable, but it seemed that counsel might have
been referring to a different memo that the district court had
addressed in the same opinion. 11 While Knight now asserts that “ICE
failed to disclose reasonably segregable portions of the Foreign Policy
Provision Memo,” Knight Br. at 57, it did not raise that failure in the
district court, nor has it filed its own cross-appeal.
11Counsel explained that the district court ordered ICE to disclose anything in the memo that was “working law. ICE did that. ICE went through, did another review, and informed the plaintiffs that nothing in [the memo] contains working law.” Oral Argument at 36:59–37:09, Knight First Amend. Inst. at Columbia Univ. v. United States Citizenship & Immigr. Servs., No. 20-3837-cv (2d. Cir. Jan. 6, 2022). But the district court discussed “working law” in the context of a different ICE memo—the so-called “Extreme Vetting Memo” that is not at issue in this appeal. See Knight II, 407 F. Supp. 3d at 344.
47 Because we cannot determine whether ICE complied with the
district court’s direction to conduct a segregability analysis, we
remand to the district court to allow the parties to develop the record.
On remand, if it has not already done so, ICE must conduct a
segregability analysis and communicate its position with respect to
the ICE memo to Knight. If ICE determines that it is not obligated to
produce any further portions of the ICE memo, Knight is free to
challenge that determination in the district court. The district court
should consider any such renewed dispute in light of our decision
expounding upon the deliberative process privilege in National
Resources Defense Council, 19 F.4th 177, which we decided only after
the district court issued its prior ruling. Should the court have doubts
about the application of Exemption 5 to the ICE memo, it may also
conduct an in camera review. And, of course, either party remains free
to appeal anew in the face of an adverse ruling.
48 CONCLUSION
In sum, we hold as follows:
(1) DOS properly withheld portions of 9 FAM under FOIA
Exemption 7(E) because it established that the material was
compiled for law enforcement purposes and that disclosure
would reasonably risk circumvention of the law.
(2) An agency need not show that the techniques or procedures
of law enforcement that it seeks to protect from disclosure
under FOIA Exemption 7(E) are special or technical before
the Exemption applies, and material does not fall outside
Exemption 7(E) solely because some targets of investigation
could infer some of the contents of the material.
Accordingly, USCIS properly withheld the TRIG questions
under FOIA Exemption 7(E).
(3) It is not clear from the record whether ICE has already
complied with the segregability analysis ordered by the
49 district court with respect to the memo withheld pursuant
to Exemption 5, and whether ICE’s appeal in that respect is
now moot.
We therefore REVERSE the orders of the district court to the
extent that they required disclosure of the 9 FAM materials and the
TRIG questions. We REMAND to the district court to allow the
parties to more fully develop the record with respect to the ICE
memo.