National Public Radio, Inc. v. U.S. Department of Homeland Security

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL PUBLIC RADIO, INC. and TOM DREISBACH, Plaintiffs, v. Case No. 1:20-cv-2468-RCL U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant. MEMORANDUl OPINION This case concerns a request that · plaintiffs National Public Radio, Inc. ("NPR") and investigative journalist Tom Dreisbach (together, "NPR") made of defendant, the United States Department of Homeland Security ("DHS" or "the Department"), pursuant to the Freedom of Information Act ("FOIA"), Pub. L. No. 89-487, 80 Stat. 250 (1966), for certain information pertaining to the detention of migrants at the southern border. Before the Court are the parties' cross-motions for summary judgment, ECF Nos. 17 and 19. For the reasons that follow, Defendant's Motion for Summary Judgment will be DENIED, and Plaintiffs' Cross-Motion for Summary Judgment will be GRANTED. I. BACKGROUND A. NPR's FOIA Request The FOIA request at issue concerns records of DHS's Office of Civil Rights and Civil Liberties ("CRCL"), which works to ensure that DHS 's policies and activities "preserv[e] individual liberty, fairness, and equality under the law," including through investigating complaints filed by the public. Def. 's Statement of Undisputed Material Facts ,r 3, ECF No. 17-2. 1 NPR submitted a FOIA request to DHS on December 5, 2019, seeking all "inspection and investigative reports from CRCL examinations of immigration detention facilities under the auspices of U.S. Immigration and Customs Enforcement (ICE) from January 1, 2014 to December 5, 2019," excluding "personal identifying information about employees and detainees of immigration detention facilities." Compl. ,r 14, ECF No. 1. DHS responded in March 2020, stating that it had located 1,076 pages of responsive records but that it would withhold those records in full pursuant to FOIA Exemptions 5 and 6-the deliberative process and personnel privacy exemptions, respectively. Letter, James Holzer to Tom Dreisbach (Mar. 16, 2020), Ex. 3 to Compl., ECF No. 1-3. NPR appealed that decision to the Office of the Chief Administrative Law Judge ("ALJ") for the Coast Guard, who handles DHS's FOIA appeals. The ALJ "agree[d]" with DHS that the withheld documents "are 'intra-agency or inter-agency' documents as contemplated under Exemption 5," and that "some of the documents appear to be predecisional on their face," but he was "uncertain whether any of the predecisional recommendations in these documents were ever adopted by the Agency." June 20, 2020 ALJ Op. at 2, Ex. 5 to Compl., ECF No. 1-5. The ALJ also stated that he was "unable to determine whether the Agency properly applied Exemption 5 to purely factual information in the responsive documents, which federal courts generally prohibit." Id. "Moreover," he noted, "as various federal courts recognize, when possible, the Agency must segregate and produce this factual information from the portion of the documents covered by the deliberative process privilege." Id. at 3. Accordingly, the ALJ remanded to DHS "to provide [his] office with a further explanation concerning whether the factual materials should/could be segregated and produced," at which point he would "be equipped to rule on whether Exemption 6 applies." Id. 2 DHS …

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