UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

National Council of La Raza, New York Immigration Coalition, American Immigration Lawyers Association, National Immigration Law Center, National Immigration Forum, National Immigration Project of the National
Lawyers Guild, and Massachusetts Immigrant and Refugee
Advocacy Coalition, Plaintiffs,

v.

Department of Justice,

Defendant.

COMPLAINT

Introduction 1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for injunctive and other appropriate relief and to obtain the disclosure and release of agency records improperly withheld from plaintiffs by defendant Department of Justice (“DOJ” or the “Department”).
2. The documents that plaintiffs seek set forth Department policy on a matter of great public concern, namely the extent to which state and local police agencies possess inherent

authority to enforce the federal immigration laws. Until 2002, there was no doubt that DOJ had definitively concluded that state and local police lack inherent authority to enforce non-criminal immigration laws. That policy was set forth in a publicly available memorandum. In 2002, the actions of the Department and the public statements of the Attorney General raised questions about whether DOJ policy had changed. These actions included the official withdrawal of the relevant part of the published memorandum.
3. In response to these actions and pronouncements, plaintiffs sought, pursuant to the FOIA, the specific documents reportedly embodying the Department’s new policy. DOJ has admitted the existence of responsive documents that it refuses to identify or disclose. A new policy that state and local police possess some degree of inherent authority to arrest and detain individuals believed to be in violation of civil, non-criminal provisions of the federal immigration laws would constitute a dramatic departure from prior policy and practice on an issue of national importance, with profound consequences for citizens and immigrants alike.
4. The analysis contained in the 1996 policy memorandum strongly suggests that a policy providing for greater state and local enforcement of civil immigration laws would be contrary to federal law. In addition, such a policy would have serious implications for public safety and civil rights. In the opinion of many police officials, and of the plaintiffs in this action, local enforcement of the immigration laws would deter crime victims and witnesses from reporting crimes (including domestic violence) to the police and from cooperating in investigations. As a result, the community as a whole would suffer. Participation in immigration
2

enforcement would also divert scarce local law enforcement resources from public safety needs. Moreover, citizens and non-citizens would be subject to an increased risk of civil rights violations, including improper arrest, because state and local officers generally lack training and expertise in the application of complex immigration laws.
5. The issue here, however, is not the validity or wisdom of the new DOJ policy. It is whether the documents setting forth that policy and its basis may be withheld from public scrutiny under the FOIA.
Jurisdiction and Venue 6. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B). This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-06. Venue lies in this district under 5 U.S.C. § 552(a)(4)(B) and under 28 U.S.C. § 1391(e).
The Parties 7. Plaintiff National Council of La Raza (“NCLR”) is a private, nonprofit, nonpartisan, tax-exempt organization established in 1968 to reduce poverty and discrimination and improve life opportunities for Hispanic Americans. NCLR is now the largest national constituency-based Hispanic civil rights organization in the United States. Along with its 300 affiliate organizations throughout the nation, including ten in New York, NCLR is extremely concerned about state and local enforcement of immigration laws because of its impact on community-police relations and on public safety, as well as the inherent potential for civil rights violations. NCLR requested the
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documents at issue in this action from defendant on or about August 21, 2002, and has exhausted the available administrative remedies.
8. Plaintiff New York Immigration Coalition (“NYIC”) is an umbrella advocacy organization of approximately 150 New York State groups that work with immigrants, refugees, and asylees. NYIC's membership includes community-based ethnic not-for-profit organizations, not-for-profit health and human services organizations, immigrant community organizations, immigrants’ rights advocates, and leaders from organized labor, academia and the law. With its multi-ethnic, multi-racial and multi-sector base, NYIC provides a unique opportunity for members to collaborate on the creation and implementation of strategies addressing their common concerns. NYIC is a New York non-profit corporation. Its principal place of business is New York, New York. NYIC requested the documents at issue in this action from defendant on or about August 21, 2002, and has exhausted the available administrative remedies.
9. Plaintiff American Immigration Lawyers Association (“AILA”) is a national nonprofit association of immigration and nationality lawyers. AILA is an affiliated organization of the American Bar Association. AILA was founded in 1946 and now has more than 8,000 members organized in 35 chapters across the United States and in Canada. AILA’s members and their clients are directly and severely affected by DOJ’s policy on state and local immigration enforcement. AILA requested the documents at issue in this action from defendant on or about August 21, 2002, and has exhausted the available administrative remedies.
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10. Plaintiff National Immigration Law Center (“NILC”) is a national nonprofit legal support center whose mission is to protect and promote the rights and opportunities of lowincome immigrants and their family members. NILC staff specialize in immigration law and in the employment and public benefits rights of immigrants. NILC conducts policy analysis and impact litigation and provides publications, technical advice, and trainings to a broad constituency of legal aid agencies, community groups, and pro bono attorneys. NILC is extremely concerned about state and local enforcement of immigration laws and believes that if immigrants fear that reporting crime will lead to their deportation, they will avoid contact with law enforcement officers. NILC believes that such a policy will ultimately erode public safety. NILC requested the documents at issue in this action from defendant on or about August 21, 2002, and has exhausted the available administrative remedies.
11. Plaintiff National Immigration Forum (the “Forum”) is a pro-immigrant advocacy organization based in Washington, DC. Established in 1982 as a private, non-partisan, nonprofit, and tax-exempt organization, the Forum educates both the public and policy-makers on the contributions of immigrants and the benefits of immigration to the United States. Working with its 260 member organizations around the United States, the Forum advocates and builds support for public policies that welcome immigrants and refugees and are fair and supportive to newcomers in the United States. The Forum has been a central actor in efforts to ascertain the Justice Department’s current policy regarding the enforcement of federal immigration laws by
5

state and local police. The Forum requested the documents at issue in this action from defendant on or about August 21, 2002, and has exhausted the available administrative remedies.
12. Plaintiff National Immigration Project of the National Lawyers Guild (“NIP”) is a national membership organization of attorneys, law students, and paralegals that exists to promote a fair and humane administration of United States immigration laws and respect for the civil and constitutional rights of all persons. NIP provides continuing legal education seminars and publishes books and other material regarding the scope of immigration law enforcement. In addition, many of NIP’s members represent non-citizens who will be significantly affected by the issues raised in this case. NIP requested the documents at issue in this action from defendant on or about August 21, 2002, and has exhausted the available administrative remedies.
13. Plaintiff Massachusetts Immigrant and Refugee Advocacy Coalition (“MIRA”) was formed in 1987 by individuals and organizations concerned with preserving the civil and human rights of Massachusetts’s immigrants and refugees. MIRA is a multi-ethnic, multi-racial coalition that actively involves 160 grassroots immigrant organizations, human service agencies, legal service providers, labor unions, religious organizations, health care providers, state and federal agencies and human rights groups in cooperative efforts. Its mission is to promote and enhance the rights and opportunities of immigrants and refugees to shape the public policies that affect their lives. MIRA requested the documents at issue in this action from defendant on or about August 21, 2002, and has exhausted the available administrative remedies.
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14. Defendant Department of Justice (“DOJ”) is a Department of the Executive Branch of the United States Government, and includes the Office of Legal Counsel (“OLC”). DOJ is an agency within the meaning of 5 U.S.C. § 552(f)(1).
DOJ’s Failure to Release its Current Policy Regarding State and Local Enforcement of the Immigration Laws 15. Prior to 2002 and the request at issue here, DOJ had adopted the policy that state and local law enforcement agents lack inherent authority to detain or arrest individuals on suspicion that they have violated the non-criminal provisions of the immigration laws. DOJ’s complete policy on state and local immigration enforcement was embodied in a publicly available Office of Legal Counsel memorandum dated February 5, 1996. DOJ published the 1996 policy memorandum in its official “Opinions of the Office of Legal Counsel” and made it available on the DOJ website, Lexis, and Westlaw. 16. The 1996 policy memorandum, which is over twenty single-spaced pages long, includes extensive legal analysis and reasoning, identifies elements of relevant standards, and explains the implications of DOJ’s analysis with respect to several different factual scenarios that law enforcement officers might encounter. 17. In 2002, DOJ withdrew the section of the governing OLC policy memorandum dealing with state and local enforcement of civil immigration laws by adding an editor’s note to the memorandum. The editor’s note withdraws the relevant portion of the OLC policy memorandum. The note does not refer the reader to any new policy document or analysis. In
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April, 2002, various media sources reported that OLC had prepared an opinion concluding that state and local governments had “inherent authority” to enforce immigration laws.
18. On or about June 5, 2002, Attorney General John Ashcroft indicated that the Department had adopted a new policy at variance with its previous policy. At a press conference, the Attorney General expressed the view that state and local law enforcement agencies have inherent authority to enforce civil immigration laws whenever an individual’s name appears in the federal National Crime Information Center (“NCIC”) database. The NCIC is a computerized information system maintained by the Federal Bureau of Investigation (“FBI”). FBI statistics indicate that the NCIC is accessed millions of times per day by federal, state, and local law enforcement officials.
19. At the June 2002 press conference, the Attorney General did not explain how his position related to the standards and analysis set forth in the 1996 policy memorandum and did not set forth any new policy outlining the circumstances under which state and local police could or could not enforce civil immigration laws.
20. At the June 2002 press conference, the Attorney General specifically stated that the “Justice Department’s Office of Legal Counsel has concluded that this narrow, limited mission … is within the inherent authority of the states,” indicating that the referenced analysis constituted the new policy of the Department.
21. On or about June 24, 2002, White House Counsel Alberto R. Gonzales issued a letter that echoed the Attorney General’s remarks. The letter specified that “the Attorney General
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recently announced that [OLC] has concluded that state and local police have inherent authority to arrest and detain persons who are in violation of immigration laws and whose names have been placed in the [NCIC].” (Emphasis omitted.) Mr. Gonzales’s letter makes no mention of the pre-existing 1996 policy memorandum, offers no explanation for reconciling the prior policy with his pronouncement, and does not articulate the Department’s actual policy regarding state and local immigration enforcement.
22. In response to these statements and correspondence, in August 2002 plaintiffs submitted a request pursuant to the FOIA to DOJ, asking for clarification and seeking the new OLC memorandum that appeared to have replaced the prior policy and that now constituted the governing policy of the Department. As set forth in paragraphs 28-35, infra, DOJ has located, but refuses to disclose, two documents responsive to plaintiffs’ FOIA request and plaintiffs have exhausted the available administrative remedies.
23. Apparently in further response to plaintiffs’ August 2002 letter, the Attorney General wrote a letter on or about March 11, 2003 purporting to “state clearly the policy of the Department on this issue.” The Attorney General’s letter is just over one page long. It again specifically relies on a new OLC policy memorandum but adds little to the sketch-like description of DOJ policy provided in his June 2002 remarks. The March 11 letter does not fully set forth the DOJ’s current policy regarding state and local enforcement of civil immigration provisions, does not relate the Attorney General’s view to the analysis and standards set forth in the 1996 policy memorandum, and does not provide any legal basis for the Attorney General’s views or for the
9

Department’s withdrawal of its prior policy memorandum. The only explanation the Attorney General’s letter offers is that DOJ considers individuals listed in the NCIC to have “been determined by federal authorities to pose special risks.”
24. The Attorney General’s June 2002 statement and March 2003 letter, as well as Mr. Gonzales’s June 2002 letter, explicitly rely on, refer to, and thereby incorporate OLC’s new, unreleased memorandum on state and local immigration enforcement authority.
25. On information and belief, DOJ has adopted an OLC memorandum that has not been released to the public as its new policy and operative law regarding the authority of state and local law enforcement officials to enforce the civil provisions of immigration law. DOJ’s new policy supersedes the 1996 policy with respect to enforcement of civil immigration provisions.
26. On information and belief, DOJ has informed state and/or local law enforcement officials and/or associations of such officials that such officials have the inherent authority to arrest and detain individuals who are in violation of civil immigration laws and are listed in the NCIC.
27. On information and belief, DOJ’s new policy on state and local enforcement of civil immigration laws constitutes the basis for other DOJ actions and decisions, including the decision to include certain individuals alleged to have violated civil immigration provisions in the NCIC, and governs the activity of DOJ personnel with respect to state and local enforcement issues.
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Plaintiffs’ FOIA Request 28. On or about August 21, 2002, thirty-four organizations, including the plaintiffs in this action, submitted a FOIA request to DOJ asking DOJ to clarify its policy on state and local enforcement of immigration laws and to release the most recent OLC opinion on that subject. 29. Defendant responded to plaintiffs’ FOIA request by letter dated September 9, 2002. Defendant admitted that a search of OLC’s files had found two agency records responsive to the request. Defendant stated that it was withholding those records pursuant to Exemption Five of the FOIA, 5 U.S.C. § 552(b)(5), on the ground that they fell within the deliberative process privilege. 30. Defendant’s response to plaintiffs’ FOIA request did not identify the documents being withheld, release segregable non-exempt material, or explain why defendant believes that the deliberative process privilege encompasses the withheld records. 31. On or about October 15, 2002, plaintiffs, along with other requesters, administratively appealed defendant’s denial of their FOIA request to DOJ’s Office of Information and Privacy (“OIP”), in accordance with DOJ’s procedures for such appeals. 32. On or about February 20, 2003, the Co-Director of OIP affirmed the denial of plaintiffs’ FOIA request, on the ground that the withheld documents fell within the deliberative process privilege.
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33. OIP’s determination of plaintiffs’ administrative appeal did not identify the documents being withheld, release segregable non-exempt material, or explain why defendant believes that the deliberative process privilege encompasses the withheld records.
34. The Attorney General’s March 11, 2003 letter confirmed that he had referred plaintiffs’ FOIA request to OIP for “evaluation and appropriate action” and did not indicate that any further action could or would be taken on plaintiffs’ FOIA request, which DOJ had already denied twice.
35. Plaintiffs have exhausted the available administrative remedies. 36. Defendant is improperly withholding the records sought by plaintiffs’ FOIA request.
First Cause of Action: Violation of the FOIA for Failure to Disclose the Records Sought
in Response to Plaintiffs’ Request 37. Plaintiffs repeat and reallege paragraphs 1-36. 38. Defendant’s failure to disclose the records requested violates 5 U.S.C. § 552(a)(3)(A).
Second Cause of Action: Violation of the FOIA for Failure to Affirmatively Disclose
the Records Sought 39. Plaintiffs repeat and reallege paragraphs 1-36. 40. Defendant’s failure to make the records requested available to the public violates 5 U.S.C. § 552(a)(1)-(2).
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Requested Relief WHEREFORE, plaintiffs respectfully request that this Court:
A. order defendant to disclose the withheld records in their entireties and make copies available to plaintiffs;
B. provide for expeditious proceedings in this action; C. award plaintiffs their costs and reasonable fees incurred in this action; and D. grant such other relief as the Court may deem just and proper.

Respectfully submitted,

Dated: April 14, 2003 New York, New York
Christopher Dunn (CD-3991) Arthur Eisenberg (AE-2012) Donna Lieberman (DL-1268) New York Civil Liberties Union Foundation 125 Broad Street, 17th Floor New York, NY 10004 (212) 344-3005

By: ______________________ Omar C. Jadwat (OJ-5792)
Lucas Guttentag (LG-0392) Omar C. Jadwat (OJ-5792) American Civil Liberties Union Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2620
Michael J. Wishnie (MW-1952) 161 Avenue of the Americas, 4th Floor New York, NY 10013 (212) 998-6471 Cooperating Counsel ACLU Immigrants’ Rights Project
Attorneys for Plaintiffs

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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x NATIONAL COUNCIL OF LA RAZA, et al.
Plaintiffs,
-against-
DEPARTMENT OF JUSTICE,
Defendant. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

03 Civ. 2559 (LAK)

MEMORANDUM OPINION
Appearances:
Christopher Dunn Arthur Eisenberg Donna Lieberman NEW YORK CIVIL LIBERTIES UNION FOUNDATION Attorneys for Plaintiffs
Lucas Guttentag Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION Attorneys for Plaintiffs
Sara Campos NATIONAL IMMIGRATION LAW CENTER Attorney for Plaintiffs
Michael J. Wishnie ACLU IMMIGRANTS’ RIGHTS PROJECT Attorney for Plaintiffs
James B. Comey, United States Attorney Sarah S. Normand Peter D. Keisler Elizabeth J. Shapiro Attorneys for Defendant

LEWIS A. KAPLAN, District Judge.
Plaintiff advocacy organizations1 brought this action under the Freedom of Information Act2 (“FOIA” or the “Act”) to compel the Department of Justice (“Department”) to produce certain records relating to the Department’s position on the authority of state and local police to enforce immigration laws. The Department asserts that the documents fall within 5 U.S.C. § 552(b)(5) (“Exemption 5”), which exempts from the Act’s disclosure requirements “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” Specifically, the Department asserts that the requested documents are protected by the deliberative process privilege and the attorney-client privilege. The matter is before the Court on the Department’s motion for summary judgment dismissing the complaint.
Facts A. Background
The facts are essentially undisputed. The plaintiffs made the FOIA requests that gave rise to this lawsuit after the Department of Justice seemingly changed its position on the authority of state and local police to enforce federal immigration laws. In 1996, the Department’s Office of Legal Counsel (“OLC”) issued a lengthy legal opinion concluding, among other things, that states
1
The plaintiffs are National Council of La Raza, American Civil Liberties Union, New York Immigration Coalition, National Employment Law Project, American Immigration Lawyers Association, National Immigration Law Center, National Immigration Forum, National Immigration Project of the National Lawyers Guild, and Massachusetts Immigrant and Refugee Advocacy Coalition.
2
5 U.S.C. § 552 (2004).

2 have the authority to detain aliens in order to enforce the criminal provisions of the immigration laws but lack legal authority to detain aliens for the purpose of civil deportation proceedings.3 The OLC is a component of the Department of Justice that renders legal advice to the Attorney General.4 The
Department says, and plaintiffs do not dispute, that the Department publishes only a small fraction of the OLC’s opinions.5 The 1996 opinion was published.6
In 2002, the Department of Justice announced a new policy pursuant to which the
federal government would call upon state and local police to assist in the enforcement of
immigration laws. On June 5, 2002, Attorney General John Ashcroft held a press conference to
announce the National Security Entry-Exit Registration System (“NSEERS”), a program for tracking foreign visitors to the United States.7 He explained that, as part of the system, aliens who violate
registration requirements or visa terms will be entered into the National Crime Information Center (“NCIC”), a database regularly used by state and local police officers.8 The Attorney General then
stated:
“When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed in the NCIC, this
3
Jadwat Decl. Ex. A.
4
Def. 56.1 St. ¶ 1.
5
Id. ¶¶ 4, 6.
6
Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26 (1996), available at http://www.usdoj.gov/olc/immstopo1a.htm.
7
Def. 56.1 St. ¶¶ 13-14.
8
Id. ¶¶ 15-17.

3
criminal information system, federal law permits them to arrest the individual and transfer the individual to the custody of the INS. The Justice Department’s Office of Legal Counsel has concluded that this narrow, limited mission we are asking state and local police to undertake voluntarily . . . is within the inherent authority of the states.”9
The OLC conclusion mentioned by the Attorney General is reflected in an April 2002
opinion of the OLC, which concluded that states have the authority to enforce civil provisions of the
immigration laws.10 The defendant says, and plaintiffs offer no direct evidence to refute, that the
April 2002 opinion has not been circulated outside the Executive Branch.11 According to the
declaration of M. Edward Whelan III, the Principal Deputy Assistant Attorney General for the Office
of Legal Counsel, the opinion and a related OLC memorandum issued in March 2002 “have been
shared only with government officials and staff working on these issues and closely held by them
in strict confidence.”12 Nonetheless, the Department referred to the OLC documents in a series of
public statements.
In March 2003, the Attorney General responded to a letter from one of the plaintiffs,
which inquired into the authority of state and local law enforcement officers to arrest aliens who
9
Id. ¶¶ 18, 20; Normand Decl. Ex. D at 2.
10
Def. 56.1 St. ¶¶ 8, 10; Jadwat Decl. Ex. I, Ex. K at 5. See also Jadwat Decl. Ex. A at 19 (1996 opinion now contains an editor’s note saying that “in 2002, the Office of Legal Counsel withdrew the advice set forth in th[e] section” concluding that states have the authority to enforce civil provisions of immigration laws).
11
Def. 56.1 St. ¶11. The plaintiffs challenge this assertion, Pl. 56.1 St. ¶ 1, but they cite no admissible evidence tending to show that the memoranda were actually shown to anyone outside the Executive Branch. See id.; Jadwat Decl. Exs. B, C, D, L.
12
Whelan Decl. ¶ 13.

4
have violated civil provisions of the immigration laws. The Attorney General wrote, among other
things:
“Let me first state clearly the policy of the Department on this issue. The Department’s Office of Legal Counsel (OLC) previously opined that state and local law enforcement officials have inherent authority to make arrests for criminal immigration law violations generally. It has now additionally opined that they possess inherent authority to arrest individuals whose names have been entered into the [NCIC] . . . . Thus, when state and local law enforcement officers encounter an alien who poses special risks and has been listed in the NCIC database for violating the [Immigration and Nationality Act], they may arrest that individual and transfer him to the custody of the Immigration and Naturalization Service (INS). The policy and the authority are no broader than this . . . .”13
In May 2003, the Attorney General and one of his subordinates, the Acting Assistant
Attorney General for Legislative Affairs, responded in similar terms14 to inquiries from the Boston
Police Department, a U.S. Representative, and the U.S. House of Representatives Committee on the
Judiciary.15 The letter to the Boston Police Department elaborated slightly on the extent of the states’
authority in the area of civil immigration enforcement.16
In June 2003, Kris W. Kobach, Counsel to the Attorney General,17 delivered remarks
at a meeting of the FBI’s Criminal Justice Information Services Advisory Policy Board. The meeting
13
Jadwat Decl. Ex. H.
14
One difference is that unlike the March 2003 letter, the documents sent in May did not characterize the Department’s position as a “policy.” Jadwat Decl. Ex J. at 2, Ex. K at 4-5.
15
Jadwat Decl. Ex. I, Ex. J at 2-3, Ex. K at 4-5.
16
Jadwat Decl. Ex. J.
17
See Supp. Normand Decl. Ex. A at 11.

5
was attended by nearly 140 people, including state and local law-enforcement officials and
representatives of private industry.18 Kobach referred several times to an OLC opinion.19 At the
beginning of his presentation he described the opinion:
“What I’d like to do just to sort of summarize what I’m going to say is give you a very quick overview of the Office of Legal Counsel opinion . . . . I don’t want to get too much into the legalese of this, but [OLC found that] there [is] no federal preemption of state and local assistance for civil violations of the Act versus criminal violations of the Act. In addition, there were several Circuit court opinions in the 10th US Court of Appeals, and that also raised the question . . . that perhaps we need to resolve this issue and just clear up the ambiguity. In a nutshell [OLC] concluded that there is no federal preemption, there is no difference between civil and criminal with respect to whether state laws are preempted . . . . [T]he authority to make such arrest is an inherent authority possessed by the states.”20
Later in his presentation, Kobach stated:
“As far as the civil-criminal assumption, there really isn’t any legal fiber underneath it in the immigration law, at least. And so in the OLC opinion it came out very clearly, and the Attorney General did announce the summary of what that opinion is . . . in one of his speeches on June of 2002.”21
B. The FOIA Requests and this Action
Plaintiffs submitted two FOIA requests.22 The first request, dated August 21,
18
Jadwat Decl. Ex. L App. B.
19
Third Jadwat Decl. Ex. C at 1-4, 10, 28; Jadwat Decl. Ex. L at 11.
20
Third Jadwat Decl. Ex. C at 1-3.
21
Id. at 28.
22
The first request was submitted by a group of 34 organizations that included all but two of the plaintiffs. Def. 56.1 St. ¶ 27 & n.2. The second request was submitted by the American

6 2002, stated that recent reports, documents, and events suggested three conflicting positions on the authority of state and local police to enforce civil immigration law.23 The requesters asked
the Department “to clarify the situation and share with us the Office of Legal Counsel’s most recent legal opinion . . . .”24 The Department responded that it had located two responsive
documents but that it was withholding them under Exemption 5 because the documents are protected by the deliberative process privilege.25 One of the OLC opinions was dated March 11, 2002.26 The other, dated April 3, 2002, is apparently the one to which Department officials have referred in public statements.27 Plaintiffs administratively appealed the decision, but the appeal was denied.28
The second request, dated March 5, 2003, asked for:
“[A]ll records in the offices of the Attorney General, the Deputy Attorney General, and the Associate Attorney General, and all Office of Legal Counsel records, that:
1. constitute the basis for the Attorney General’s press conference
Civil Liberties Union Foundation on behalf of a group of organizations that included all but one of the plaintiffs. Def. 56.1 St. ¶ 38 & n.3.
23
Id. ¶ 27; Pustay Decl. Ex. A.
24
Def. 56.1 St. ¶ 28; Pustay Decl. Ex. A at 2.
25
Def. 56.1 St. ¶ 30-34; Whelan Decl. Ex. B.
26
Normand Decl. Ex. K at 10.
27
See id. at 11; Jadwat Decl. Ex. I, Ex. K at 5.
28
Def. 56. 1 St. ¶¶ 35-37.

7
statement regarding the inherent authority of the states to arrest aliens who have violated the civil provisions of the Immigration Act;29 2. set forth, refer to or discuss the Attorney General’s abovereferenced statement regarding the authority of the states to enforce the civil provisions of the immigration laws; or 3. communicate to state or local law enforcement agencies the Department of Justice’s position on the enforcement of civil provisions of the immigration laws by state or local officials, as announced in the Attorney General’s above-referenced statement.”30
On April 14, 2003,31 plaintiffs brought this action, alleging that the Department’s
response to the first request violated the FOIA’s disclosure requirements.32 On April 29, 2003, the
plaintiffs submitted an amended complaint that challenged the Department’s response to the second
request.33
29
According to the defendant, the plaintiffs agreed to narrow item number one of their request “to exclude inter- or intra-agency drafts and inter- or intra-agency comments on or about such drafts.” Def. 56.1 St. ¶ 44. In fact, the defendant does not support this point with evidence. See S.D.N.Y. R. 56.1(d). The documents cited in the defendant’s Rule 56.1 statement show only that the Department requested such a limitation, not that plaintiffs actually agreed to it. Pustay Decl. Ex. F; Normand Decl. Ex. H. Since the plaintiffs have not made an issue of this discrepancy, neither will the Court.
30
Id. ¶¶ 38-39; Pustay Decl. Ex. E.
31
At that point the Department had not finished processing the second request, Def. 56.1 St. ¶ 43, but the Department has conceded that plaintiffs exhausted their administrative remedies with respect to both requests. Answer ¶ 41. See also 5 U.S.C. § 552(a)(6)(A), (C) (a requester is deemed to have exhausted administrative remedies if an agency does not respond to the request within 20 days).
32
Compl.
33
Def. 56.1 St. ¶ 53; Am. Compl. The complaint states two causes of action. The first, based on 5 U.S.C. § 552(a)(3), alleges that the Department improperly withheld records requested by the plaintiffs. As amended, the second cause of action, which is based on FOIA’s requirements of affirmative disclosure to the public at large, alleges that “[d]efendant’s failure to make its new policy documents available to the public” violates 5 U.S.C. §

8 The Department responded to the second FOIA request on July 2 and 3, 2003,34
identifying but withholding twenty-four35 documents in full, releasing seven documents in full, and
releasing four documents in part.36 The Department based all of the withholdings on Exemption 5.37
The Department has produced a Vaughn index38 of which the final version contains 28 documents.39
The documents identified in the index, in addition to the two OLC opinions, consist of drafts of a
letter, a draft of a policy option paper, drafts of a memorandum, drafts of “talking points,” a policy
option paper, and email messages.40
The matter now is before the Court on defendant’s motion for summary judgment.
Discussion
The major issues are whether the OLC memoranda are protected by the deliberative
552(a)(1)-(2). Am. Compl. ¶¶ 44, 46. See note 99 infra.
34
The second FOIA request was processed by two offices within the Department. The Office of Information and Privacy handled the search for records in the Offices of the Attorney General, the Deputy Attorney General, and the Associate Attorney General. The OLC handled the search for its own records. Def. 56.1 St. ¶¶ 30-37; 40-51.
35
Two of these were the OLC opinions identified in response to the first request. Def. Br. at 9 n.6. One is an email exchange that consists of five documents. Supp. Normand Decl. Ex. A at 11.
36
Def. 56.1 St. ¶¶ 47, 49, 51.
37
Id. ¶¶ 50-51.
38
See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
39
Normand Decl. Ex. K.
40
Id. See also Def. 56.1 St. ¶ 58.

9 process privilege; whether, if the memoranda are so protected, the Department waived the privilege
with respect to one of the memoranda; whether certain email messages qualify for the deliberative
process privilege; and whether the Department has released all segregable non-exempt material.
A. The Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.41 It is the movant’s burden to show that no genuine factual dispute exists.42 When a party moves for summary judgment, the court on its own
initiative may grant summary judgment for the other party if “it appears clearly upon the record that
all of the evidentiary materials that a party might submit in response to a motion for summary
judgment are before the court” and “those materials show that no material dispute of fact exists and that the other party is entitled to judgment as a matter of law.”43
The Second Circuit has explained that to prevail on a motion for summary judgment in a
FOIA case, the defending agency:
“has the burden of showing that its search was adequate and that any
41
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-51(1986); Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also FED. R. CIV. P. 56(c).
42
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003).
43
Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir. 1996); Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991); see also Am. Soc. of Pension Actuaries v. IRS, 746 F. Supp. 188, 192 (D.D.C. 1990) (awarding partial summary judgment to plaintiffs in FOIA case even though plaintiffs had not moved for summary judgment because record showed unambiguously that the agency had incorporated deliberative documents into policy and therefore the documents were no longer within Exemption 5).

10
withheld documents fall within an exemption to the FOIA. Affidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency’s burden.”44
Furthermore, affidavits and declarations “submitted by an agency are ‘accorded a presumption of
good faith,’” and once an agency has satisfied its burden with affidavits, a plaintiff may not obtain
further discovery unless it makes “a showing of bad faith on the part of the agency sufficient to
impugn the agency’s affidavits or declarations.”45
B. The Deliberative Process Privilege
FOIA “adopts as its most basic premise a policy strongly favoring public disclosure
of information in the possession of federal agencies.”46 The statute’s exemptions from the basic
disclosure requirement “are to be narrowly construed with all doubts resolved in favor of
disclosure.”47
At issue in this case is Exemption 5, which applies to “inter-agency or intra-agency
44
Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citations omitted); see also U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989) (burden is on agency to demonstrate that requested materials were properly withheld).
45
Carney, 19 F.3d at 812 (quoting Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)); see also Grand Cent. P’ship v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999).
46
Halpern v. FBI, 181 F.3d 279, 286 (2d Cir. 1999).
47
Local 3, Int’l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988); accord Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001); Tax Analysts, 492 U.S. at 151 (the exemptions “have been consistently given a narrow compass”); Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002).

11 memorandums or letters which would not be available by law to a party other than an agency in
litigation with the agency.”48 It generally has been interpreted as protecting documents that “fall
within the ambit of a privilege against discovery” that the agency would be able to assert in civil
litigation against the agency.49 Here, the Department asserts that the withheld documents all fall
within the ambit of the deliberative process privilege,50 which covers “documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.”51
To qualify for the deliberative process privilege, an agency document must be
“predecisional” and “deliberative.”52 A document is predecisional when it is “prepared in order to
48
5 U.S.C. § 552(b)(5) (2004).
49
Klamath Water Users Protective Ass’n, 532 U.S. at 8; accord United States v. Weber Aircraft Corp., 465 U.S. 792, 799 (1984); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975).
50
The government asserts also that the OLC memoranda, as well as Document 26, which consists of an email exchange among OLC attorneys and other Justice Department officials, are protected by the attorney-client privilege. Def. Br. at 31-33. Because the Court finds that any privilege has been waived with respect to the April 2002 OLC memorandum and that the other two OLC documents are protected by the deliberative process privilege, see infra, the Court need not reach the question of whether the attorney-client privilege applies to those documents.
51
Sears, Roebuck, 421 U.S. at 150 (internal quotation marks omitted); accord Klamath Water Users Protective Ass’n, 532 U.S. at 8.
52
Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002); Local 3, Int’l Bhd. of Elec. Workers, 845 F.2d at 1180.

12 assist an agency decisionmaker in arriving at his decision.”53 The privilege thus protects
“recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.”54 Some courts have
held that a document will be considered predecisional if the agency can “pinpoint the specific agency
decision to which the document correlates” and “verify that the document precedes, in temporal sequence, the ‘decision’ to which it relates.”55 A document is deliberative when it is “actually related to the process by which policies are formulated.”56 Courts have looked to factors such as whether
“the document (i) formed an essential link in a specified consultative process, (ii) reflects the
personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency.”57 Applying these principles to
the undisputed facts, the Court finds that all but three of the withheld documents are within the scope
of the deliberative process privilege.
1. The OLC Memoranda
The parties’ greatest disagreement centers on whether the Department of Justice is
53
Hopkins v. U.S. Dep’t of Housing & Urban Dev., 921 F.2d 81, 84 (2d Cir. 1991) (quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)); accord Grand Cent. P’ship v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999).
54
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980); accord Tigue, 312 F.3d at 80; Grand Cent. P’ship, 166 F.3d at 482.
55
Grand Cent. P’ship, 166 F.3d at 482 (internal quotation marks and citations omitted).
56
Id.
57
Id.

13 required to disclose the March and April 2002 OLC memoranda, especially the latter, which appears
to be the one that Department of Justice officials have mentioned publicly.58 The March
memorandum was submitted to Deputy Attorney General Larry D. Thompson, the April
memorandum to Attorney General John Ashcroft.59 According to the declaration of M. Edward
Whelan III, the Principal Deputy Assistant Attorney General for the OLC, the memoranda consist
of “legal advice and analysis requested by the Offices of the Attorney General and Deputy Attorney
General for the consideration of the Attorney General and Deputy Attorney General.”60 The subject
of the memoranda is “the scope of the authority of state and local law enforcement officials to assist
the Immigration and Naturalization Service.”61
These documents are predecisional and deliberative. They are predecisional because
they were prepared not to announce agency policy but to provide the agency decisionmakers with
legal analysis related to future decisions the agency might have to make. The documents are
deliberative because they reflect the conclusions of the OLC – the function of which is not to make
official Department policy, but to advise the Attorney General on the law – regarding the legality of
58
The March and April memoranda are respectively labeled Documents 27 and 28 in the Department’s Vaughn index. Normand Decl. Ex. K at 10-11.
59
Def. 56.1 St. ¶ 8; Whelan Decl. ¶ 8.
60
Def. 56.1 St. ¶ 9; Whelan Decl. ¶ 8.
61
Def 56.1 St. ¶ 10; Whelan Decl. ¶ 12. The defendant’s brief states that the memoranda were prepared to assist the Attorney General “in making a policy decision in connection with the National Security Entry-Exit Registration System initiative, specifically the extent to which state and local law enforcement could assist the INS.” Def. Br. at 20. The defendant’s Rule 56.1 statement and accompanying declarations, however, do not support a direct connection between the OLC memoranda and the NSEERS. See Def. 56.1 St. ¶¶ 7-12; Whelan Decl.

14 one or more courses of action that the Attorney General could take.
Plaintiffs argue that “[t]here is reason to believe that the policy decision had already been made by the time the OLC memo was written and, far from being predecisional, the memo constitutes the post-hoc justification for the Department’s change in policy.”62 They cite only (1) a press report suggesting that the OLC changed its position on the underlying legal question between November 2001 and April 2002, and (2) an anonymously-sourced press report stating that the Attorney General intended to“unveil” the OLC’s April opinion on April 3, 2002, the same day the OLC opinion was actually completed.63
This evidence is rank hearsay. Even if it were admissible, it would not call into question the Court’s conclusion that the OLC opinions qualify for the deliberative process privilege. Item (1) shows practically nothing, and item (2) tends to show only that the opinion was part of a process of agency decision-making. The Attorney General never did “unveil” his opinion on that April date, nor do the materials before the Court show that the Attorney General made use of that opinion in any way before that date or indeed, before the June 5, 2002 announcement of the NSEERS. The more reasonable inference is that, on the date the opinion was issued, the Attorney General still had not made any decisions regarding the subject of the memorandum.
The Court recognizes that in a government agency, as in any working environment, advice is not always rendered in an impartial spirit. Legal conclusions might well be tailored to what the legal advisor understands the decision-maker’s preferences to be. It is easy to imagine a scenario
62
Pl. Br. at 21.
63
Id. at 21-22.

15 in which OLC was asked to find a legal basis for a course of action that the Attorney General already was interested in pursuing. But even if that is what happened, the documents issued by OLC in response to such a request still would be covered by the deliberative process privilege. Because these memoranda preceded, and could be used to support, the agency’s adoption of policies regarding state and local assistance in enforcing immigration laws, the documents still would be part of the internal “give-and-take of the consultative process”64 even if they were designed to justify a plan of action already being considered by senior officials.
Indeed, documents analogous to the OLC memoranda at issue here – namely documents containing in-depth legal analysis of a definitive character – have usually been found to qualify for the deliberative process privilege. The Second Circuit held that memoranda from the Federal Power Commission’s general counsel containing “legal analysis and recommendations, legal conclusions, and policy recommendations” were protected from disclosure under Exemption 5 because these items were part of the agency’s deliberative process and not final orders.65 Similarly, in Brinton v. Department of State,66 the D.C. Circuit considered a FOIA request for legal opinions prepared by the State Department’s Office of the Legal Adviser. The court held that the documents, so long as not adopted or incorporated as working law, were not “final opinions” and therefore were protected by the deliberative process privilege: “There can be no doubt that such legal advice, given in the form of intra-agency memoranda prior to any agency decision on the issues involved, fits
64
Coastal States Gas Corp., 617 F.2d at 866.
65
Int’l Paper Co. v. Fed. Power Comm’n, 438 F.2d 1349, 1358-59 & n.3 (2d Cir. 1971).
66
636 F.2d 600 (D.C. Cir. 1980).

16 exactly within the deliberative process rationale for Exemption 5.”67 Furthermore, at least two decisions involving OLC memoranda found those documents protected by the deliberative process privilege.68
Plaintiffs have failed to raise an issue of fact as to whether the OLC opinions were part of a deliberative process. Accordingly, the Court holds that both OLC opinions are within the scope of the deliberative process privilege. The plaintiffs’ contention that defendant waived the privilege with respect to the April 2002 opinion is treated below.
2. Other documents Documents 1 through 2269 consist of drafts of, and comments on, a “policy option”
paper, a letter, a memorandum, and a set of “talking points,” as well as a final version of a “policy option paper.”70
67
Id. at 604-05.
68
Southam News v. INS, 674 F. Supp. 881, 886 (D.D.C. 1987) (opinion letter on legal questions regarding the criteria used to evaluate certain applicants for visas was protected because it was generated in the course of a deliberative process); Morrison v. U.S. Dep’t of Justice, Civ. A. No. 87-3394, 1988 WL 47662, at *1 (D.D.C. Apr. 29, 1988) (undisputed that OLC opinions regarding constitutionality of new legislation were within the scope of the deliberative process privilege).
69
Documents 7 and 8 have already been released. They consist of draft letters substantially the same as the final version of the Attorney General’s March 2003 letter. Normand Decl. Ex. J. See Jadwat Decl. Ex. H.
70
Normand Decl. Ex. K.

17 Drafts and comments on documents are quintessentially predecisional and deliberative.71 Indeed, plaintiffs have not disputed that these documents are covered by the deliberative process privilege.
Documents 23 through 26 consist of email messages withheld in part or full. Document 23 was sent from an official in the Justice Management Division to officials in the Deputy Attorney General’s Office and the Office of Legislative Affairs and inquires as to whether the OLC’s 2002 memorandum will be made publicly available.72 Documents 24 and 25 are email messages from an official in the Immigration and Naturalization Service to officials in the Deputy Attorney General’s Office and an OLC official.73 They deal with three issues: “One question concerns whether the OLC opinion will be published and the other two relate to how state and local law enforcement officers would operate under the new mission that was requested of them by the Department of Justice.”74
Documents 23 through 25 are not clearly either predecisional or deliberative. These emails were not “prepared in order to assist an agency decisionmaker in arriving at his decision,” and they are not “actually related to the process by which policies are formulated.”75 According to the Department’s declarations, all these emails do is inquire as to agency policies. But an inquiry about
71
See Coastal States Gas Corp., 617 F.2d at 866 (deliberative process privilege covers “recommendations, draft documents, proposals, suggestions . . . .”).
72
Second Pustay Decl. ¶ 5.
73
Id. ¶¶ 6-7.
74
Id. ¶ 7.
75
Grand Cent. P’ship v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999).

18 a policy is not the same thing as a step in the formulation of that policy. “‘[T]he privilege does not
protect a document which is merely peripheral to actual policy formulation; the record must bear on
the formulation or exercise of policy-oriented judgment.’”76 The defendant’s declarations, when
viewed in the light most favorable to the plaintiffs, do not carry defendant’s burden of showing that
these documents qualify for the deliberative process privilege.77 A district court has the discretion
to examine records in camera to determine whether the documents qualify for a FOIA exemption
if the question cannot be otherwise resolved.78 Since the Court cannot determine from the evidence
before it whether the deliberative process privilege properly applies, the defendant will produce
documents 23, 24, and 25 for in camera inspection.
Document 26 is a group of email messages that were exchanged on June 5, 2002
among M. Edward Whelan III, Viet Dinh, Kris W. Kobach, and Jay Byee, all officials in the
Department of Justice.79 According to the defendant’s brief and a slightly enhanced Vaughn index
submitted with the defendant’s reply memorandum, the messages contain a request by Kobach to
Dinh and Bybee for comments on a portion of the Attorney General’s draft remarks on the National
76
Id. (quoting Ethyl Corp. v. U.S. EPA, 25 F.3d 1241, 1248 (4th Cir. 1994)).
77
The emails inquiring whether the OLC opinion would be disclosed publicly raise also the question of whether the Deputy Attorney General’s Office or the OLC ever answered this inquiry. Since plaintiffs have not made this point, the Court will not address it. The Court does note, however, that the lack of such a response in the Vaughn index tends to suggest that the Department did not have a clear policy either to withhold or to disclose the OLC opinions.
78
5 U.S.C. § 552(a)(4)(B); see Grand Cent. P’ship, 166 F.3d at 483; see also U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 768 (1989); NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978).
79
Supp. Normand Decl. Ex. A at 11.

19 Security Entry-Exit Registration System, two requests by Dinh to Bybee, Kobach and Whelan “for legal advice on authority of state and local police,” and “two responses by OLC to the legal questions posed.”80
This exchange qualifies for the deliberative process privilege. The comments on the draft of the Attorney General’s remarks are like any other drafts and comments produced and exchanged before a final version is released. The requests for legal advice and responses to those requests qualify for the same reasons that the March and April OLC memoranda qualify.
Plaintiffs argue also that the defendant has not justified its decision to exclude from the Vaughn index ten additional emails that the Department told the plaintiffs “contain[] the same excerpt” as one of the released documents.81 Plaintiffs appear to be looking for an assurance that the ten documents are identical to one already produced. In a declaration submitted with the defendant’s reply papers, Melanie Pustay, who had responsibility for the processing of plaintiffs’ FOIA request, affirmed that “[t]he other ten copies of the May 6, 2003 email are identical to the one released.”82 Under the presumption of good faith accorded agency declarations, the defendant has satisfied its burden of showing that it has not improperly withheld these emails.
C. Waiver The Court’s holding that the April 2002 memorandum (Document 28) qualifies for
the deliberative process privilege does not dispose of the matter, as plaintiffs argue that the
80
Id.
81
Pl. Br. at 33; Pustay Decl. ¶ 18.
82
Second Pustay Decl. ¶ 10.

20 Department waived its privileges for that document. When an agency adopts a predecisional
document or incorporates it by reference into a final decision, the rationale for the deliberative
process privilege – namely, protecting the quality of agency decision-making ex ante by facilitating
the candid exchange of ideas – evaporates.83 Moreover, once a document has become part of an
agency’s decision, the public has a much greater interest in the disclosure of that document.84 The
D.C. Circuit has observed that “even if [a] document is predecisional at the time it is prepared, it can
lose that status if it is adopted, formally or informally, as the agency’s position on an issue or is used
by the agency in its dealings with the public.”85 It has explained also that in “FOIA cases where a
decision-maker has referred to an intra-agency memorandum as a basis for his decision,” the D.C.
Circuit requires disclosure of the memorandum, “for, once adopted as a rationale for a decision, the
memorandum becomes part of the public record.”86 Consequently, when an agency “chooses
expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by
Exemption 5,” the agency waives its privileges for that memorandum.87
83
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975); accord Tigue v. U.S. Dep’t of Justice, 312 F.3d 70, 81 (2d Cir. 2002).
84
See Sears, Roebuck, 421 U.S. at 161; accord Tigue, 312 F.3d at 81.
85
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
86
Montrose Chemical Corp. of Cal. v. Train, 491 F.2d 63, 70 (D.C. Cir. 1974) (emphasis in original).
87
Sears, Roebuck, 421 U.S. at 160; accord Tigue, 312 F.3d at 80-81. Another way an agency may waive an Exemption 5 privilege for a document is to disclose the substance of a document outside the Executive Branch. See, e.g., United States v. Jacobs, 117 F.3d 82, 8991 (2d Cir. 1997); United States v. Metro. St. Louis Sewer Dist., 952 F. 2d 1040, 1045 (8th Cir. 1992); Mobile Oil Corp. v. U.S. EPA, 879 F.2d 698, 700-701 (9th Cir. 1989); Peck v.

21 By these standards, the April 2002 memorandum must be produced. The Attorney General and his representatives repeatedly and deliberately have invoked the April 2002 memorandum to justify their decision to seek cooperation from state and local police in enforcing civil deportation laws. At the June 2002 press conference, the Attorney General referred to the OLC’s conclusions in an attempt to reassure listeners that the new mission to be asked of states is within the states’ inherent authority. The March 2003 letter describes the OLC position as a “policy.” The submissions that the Acting Assistant Attorney General for Legislative Affairs sent to members of Congress in May 2003 referred expressly to the April 2002 opinion as a legal basis for the cooperation from states that the Department was seeking to foster. In June 2003, Kris Kobach, Counsel to the Attorney General, gave what he described as an “overview” of the April 2002 opinion, including the opinion’s genesis and some of its legal analysis, in remarks at a meeting of the Advisory Policy Board of the FBI’s Criminal Justice Information Services Division. The meeting was attended by representatives of state and local law-enforcement agencies and private industry in addition to the federal government. Kobach’s comments were obviously intended to reassure attendees that the Department had found a legal basis for the cooperation it was seeking. The defendant’s attempts to refute the common-sense conclusion that the April 2002 OLC opinion has been incorporated into Department policy are unpersuasive. First, defendant argues that Department officials never have actually mentioned the April 2002 opinion. “[N]either the Attorney General nor the Counsel to the President,” it says,
United States, 514 F. Supp. 210, 212 (S.D.N.Y. 1981). Plaintiffs argue that the Department waived the privilege for the April 2002 memorandum in this way, too. Pl. Br. at 16-20. The Court, however, does not reach this question because it finds that the Department waived any Exemption 5 privileges by incorporating the memorandum into policy.

22 “explicitly made reference to the OLC memoranda.”88
This contention lacks merit. While the Attorney General may not have referred
explicitly to the OLC memoranda, the Acting Assistant Attorney General for Legislative Affairs did
so twice in submissions to Congress, and the Attorney General’s counsel did so in a speech to about 140 people.89
Defendant’s main argument resisting waiver is that “reference to a report’s
conclusions” is different from “adoption of its reasoning, and it is the latter that destroys the privilege.”90 It argues that only the former occurred in this case. Defendant has misconstrued the line
of cases on which it relies and confused two very different kinds of “reference[s] to a report’s
conclusions.”
The cases that distinguish reference to a conclusion from adopting the reasoning
behind that conclusion generally contemplate a situation in which an agency first receives a
recommendation contained in a predecisional document and later chooses to follow the
recommended course of action, but for reasons entirely different from the ones contained in the
88
Def. Br. at 24; see also Def. Reply Br. at 4-8.
89
Moreover, if taken seriously the defendant’s point would seem to argue for disclosing more OLC documents, not fewer. Let us assume that the defendant is correct and that read carefully, the Department’s announcements have actually referenced not the April 2002 document, but OLC advice and conclusions more generally. In that case, all documents bearing on that advice and those conclusions would have to be disclosed because all of that advice and those conclusions have, via the more general references, been incorporated into Department policy.
90
Def. Br. at 25 (quoting Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1197 (D.C. Cir. 1991)).

23 predecisional document.91 Or, in a related vein, an agency might refer casually to a document’s
conclusions without adopting those conclusions or the analysis behind them.92 In both situations, the
document has not become part of agency policy, and so the agency retains the deliberative process
privilege.
Those situations are very different from the one here. In this case, the Department of
Justice consistently has justified its new policy on state cooperation with reference to the OLC’s
advice. Indeed, the Department is relying on the OLC opinion as the sole legal authority for that
policy. In other words, the Department has not merely referred casually to the OLC’s conclusion
regarding the inherent authority of the states; on the contrary, the Department has adopted that
conclusion on the strength of the very reasons stated in the opinion. The Department’s view that it
may adopt a legal position while shielding from public view the analysis that yielded that position
is offensive to FOIA. As the Supreme Court has explained:
“The public is only marginally concerned with reasons supporting a policy which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground. In contrast, the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted. These reasons, if expressed within the agency, constitute the ‘working law’ of the agency . . . .”93
91
See Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 186 (1975) (“absent indication that its reasoning has been adopted, there is little public interest in disclosure of a report”).
92
See Access Reports, 926 F.2d at 1197 (Justice Department official’s confused reference in testimony before a Senate committee to a document’s conclusions did not waive privilege because the statement “fell far short of the express adoption required by Sears.”)
93
Sears, Roebuck, 421 U.S. at 152-153.

24 In American Society of Pension Actuaries v. IRS, the court ordered the disclosure of deliberative documents containing the “analytic backup” for a budget estimate ultimately adopted by the agency because those documents “‘embod[ied] the agency’s effective law and policy.’”94 Here, too, the Department of Justice must disclose the “analytical backup” to a legal conclusion that it has adopted as official policy. This truly is a situation in which “scrutiny of the memorandum as a whole is invited in order to assess the strength of the reasoning that was behind the quoted legal conclusions.”95
D. Release of Segregable Non-exempt Material Plaintiffs argue that the government’s declarations are not sufficient to establish that
the the Department has disclosed all segregable non-exempt material.96 The Department, however, has described each of the withheld documents with “reasonable specificity”97 in its Vaughn index. The Court is convinced from these descriptions and from the agency’s declarations that the defendant has carried its burden of demonstrating that all reasonably segregable non-exempt material has been disclosed. In the absence of a showing of bad faith or some other reason to question the agency’s
94
746 F. Supp. 188, 191-92 (D.D.C. 1990) (quoting Sears, Roebuck, 421 U.S. at 153).
95
Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977).
96
Pl. Br. at 28-29.
97
Grand Cent. P’ship v. Cuomo, 166 F.3d at 478 (quoting Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994) (citation and internal quotation marks omitted)).

 
 345 F.Supp.2d 412 (2004)
NATIONAL COUNCIL OF LA RAZA, et al. Plaintiffs, v.
DEPARTMENT OF JUSTICE, Defendant.
No. 03 Civ.2559 LAK.
United States District Court, S.D. New York.
November 22, 2004.
Christopher Dunn, Arthur Eisenberg, Donna Lieberman, New York Civil Liberties Union Foundation, Lucas Guttentag, Omar C. Jadwat, American Civil Liberties Union Foundation, Sara Campos, Michael J. Wishnie, ACLU Immigrants' Rights Project, New York City, for Plaintiffs.
Sarah S. Normand, Assistant United States Attorney, David N. Kelley, United States Attorney, New York City, for Defendant.
MEMORANDUM OPINION
KAPLAN, District Judge.
Plaintiffs have applied by letter for an order directing the defendant to "describe briefly the portion of the 2002 OLC opinion that the October 14, 2004 opinion of this Court permits the government to redact." The government 413 resists the application both on the merits and on the *413 ground that the pendency of its appeal deprives this Court of jurisdiction.
Jurisdiction
The October 14, 2004 opinion reaffirmed an earlier opinion[1] granting summary judgment to the defendant with respect to most of the documents in question and modified the earlier opinion by, insofar as is relevant here, permitting the defendant to redact certain portions of the 2002 OLC memorandum that the earlier opinion had ordered disclosed in its entirety. In substance the October 14, 2004 opinion held that plaintiffs were not entitled to summary judgment requiring disclosure of the redacted portions. Defendant appealed.
Defendant correctly argues that, in general, "[t]he filing of a notice of appeal is an event of jurisdictional significance0907it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."[2] Rigid enforcement of such a mechanical rule, however, would ill serve the rule's objective of promoting efficiency by preventing two courts from addressing the same matter at the same time.[3] Moreover, it would deliver into the hands of each litigant the ability to freeze matters in the district court simply by filing a notice of appeal, no matter how frivolous.[4] In consequence, district courts are not deprived of jurisdiction by the filing of untimely or manifestly defective appeals and appeals from non-appealable orders.
There is nothing defective about the defendant's appeal from so much of the October 14, 2004 order as required it to disclose portions of the 2002 OLC memorandum. However, insofar as the notice of appeal purports to appeal from those aspects of the order that favored the defendant 0907such as the portion of the order that declined to require the disclosure of the balance of the OLC memorandum0907 the matter stands differently.
"One of the prerequisites to appellate jurisdiction, pursuant to 28 U.S.C. § 1291 (1994), is that the appellant has standing to pursue the appeal.... [S]tanding to appeal is conferred only on parties `aggrieved' by the judgment" or order appealed from.[5]

The defendant obviously is aggrieved by so much of the October 14, 2004 order as required disclosure of part of the 2002 OLC memorandum. It is not aggrieved by so much of that order as did not compel disclosure. In consequence, no non-frivolous appeal is pending from those aspects of the October 14, 2004 order as did not order disclosure. As the notice of appeal was capable of transferring to the Court of Appeals jurisdiction over only so much of the case as is necessarily involved in the appeal, it could not divest this Court of jurisdiction over the remaining portion of the case. Accordingly, this Court has jurisdiction over the question whether the defendant 414 should be required to produce the redacted portion of the 2002 OLC *414 memorandum, a question that is not before the Court of Appeals.
The Merits
In Vaughn v. Rosen,[6] the District of Columbia Circuit laid out a procedure for handling government claims of exemption from Freedom of Information Act requests that has been adopted by this and all or most other circuits. [7] The government must prepare what has become known as a Vaughn index a 0907 document "itemizing and indexing [documents withheld] that would correlate statements made in the Government's refusal justification with the actual portions of the document."[8]
In this case, as the Court previously noted, the Vaughn index furnished by the government gave no inkling that the 2002 OLC memorandum was broader than the Attorney General's announced policy of enlisting state and local police in arresting certain illegal aliens. That was discovered only when the Court required submission of the opinion for in camera inspection. In consequence, the defendant's Vaughn index was inadequate in this respect.
To be sure, the Vaughn index is not an end in itself.[9] The Court, moreover, already has ruled that the redacted portions of the OLC memorandum are exempt under the Freedom of Information Act. Nevertheless, it necessarily did so without the benefit of argument by plaintiffs based on an appropriate disclosure by the defendant. In appropriate circumstances, the Court is empowered to revisit that conclusion.[10] While the likelihood of a different result appears small, plaintiffs are entitled to a proper Vaughn index and an opportunity to seek to persuade the Court that they should receive the redacted portions of the document.
Conclusion
For the foregoing reasons, plaintiffs' application is granted. The defendant shall supplement its Vaughn index with respect to the 2002 OLC memorandum as indicated above no later than December 3, 2004.
SO ORDERED.
[1] National Council of La Raza v. Dep't of Justice, 337 F.Supp.2d 524 (S.D.N.Y.2004). A corrected version of the earlier opinion also was issued October 14, 2004.
[2] Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982).
[3] See, e.g., United States v. Rodgers, 101 F.3d 247, 251 (2d Cir.1996).
[4] See Leonhard v. United States, 633 F.2d 599, 609-11 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981).
[5] Concerned Citizens of Cohocton Valley, Inc. v. New York State Department of Environmental Conservation, 127 F.3d 201, 204 (2d Cir. 1997).
[6] 484 F.2d 820 (D.C.Cir.1973).
[7] See, e.g., Ruotolo v. Department of Justice, 53 F.3d 4, 6 (2d Cir.1995).
[8] Vaughn, 484 F.2d at 827.

[9] E.g., Donovan v. Federal Bureau of Investigation, 806 F.2d 55, 58-59 (2d Cir.1986). [10] See, e.g., Fed.R.Civ.P. 54(b), 60(b).
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 National Council of La Raza v. Department of Justice, Not Reported in F.Supp.2d (2004)

2004 WL 2283822 Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
NATIONAL COUNCIL OF LA RAZA, et al., Plaintiffs, v.
DEPARTMENT OF JUSTICE, Defendant.
No. 03 Civ. 2559(LAK). | Oct. 12, 2004.
Opinion
ORDER
KAPLAN, J.
*1 On September 24, 2004, this Court granted partial summary judgment in favor of defendant on most of plaintiffs’ claims under the Freedom of Information Act, but granted summary judgment in plaintiffs’ favor with

respect to, and directed defendant to produce by today, an April 2002 opinion of the Office of Legal Counsel (“OLC”). National Council of La Raza v. Department of Justice, No. 03 Civ. 2559(LAK), 2004 WL 2153929 (S.D.N.Y. Sept. 24, 2004). The Court assumes familiarity with that opinion. Defendant now moves for reconsideration of so much of the decision as directed production of the OLC opinion, including in camera inspection of the document, and for a stay while it decides whether to take an appeal.
Defendant shall submit the OLC opinion to the Court for in camera inspection no later than October 14, 2004 at 3 p.m.
The Department’s obligation to produce the document to the plaintiffs is stayed to and including October 24, 2004 to permit further consideration of whether to appeal. The Court will indicate whether a further stay will be granted when it rules on the motion for reconsideration following in camera inspection.
SO ORDERED.
	  

1

 
 CLOSED
U.S. District Court United States District Court for the Southern District of New York (Foley
Square) CIVIL DOCKET FOR CASE #: 1:03-cv-02559-LAK

National Council, et al v. Dept. of Justice Assigned to: Judge Lewis A. Kaplan Demand: $0 Cause: 05:552 Freedom of Information Act

Date Filed: 04/14/2003 Date Terminated: 11/14/2005 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff National Council of La Raza

represented by Omar C. Jadwat American Civil Liberties Union, Women's Rights Proj 125 Broad Street New York, NY 10004 (212) 549-2620 Fax: (212) 549-2654 LEAD ATTORNEY

Plaintiff
New York Immigration Coalition

represented by Omar C. Jadwat (See above for address) LEAD ATTORNEY

Plaintiff
American Immigration Lawyers Association

represented by Omar C. Jadwat (See above for address) LEAD ATTORNEY

Plaintiff
National Immigration Law Center

represented by Omar C. Jadwat (See above for address) LEAD ATTORNEY

Plaintiff National Immigration Forum

represented by Omar C. Jadwat (See above for address) LEAD ATTORNEY

Plaintiff
National Immigration Project of the National Lawyers Guild

represented by Omar C. Jadwat (See above for address) LEAD ATTORNEY

Plaintiff
Massachusetts Immigrant and Refugee Advocacy Coalition

represented by Omar C. Jadwat (See above for address) LEAD ATTORNEY

V. Defendant Department of Justice

represented by Sarah S. Norman Office of the U.S. Attorney Southern District of New York 100 Church Street 19th Floor New York, NY 10007 (212) 637-2709 LEAD ATTORNEY

Date Filed 04/14/2003 04/14/2003
04/14/2003

#

Docket Text

1 COMPLAINT filed. Summons issued and Notice pursuant to 28 U.S.C. 636(c). FILING FEE $ 150.00 RECEIPT # 470150. (gf) (Entered: 04/15/2003)

2 RULE 7.1 CERTIFICATE filed by National Council, NY Immigration, American Imm., National Imm., National Immigration, Nat'l Imm. Project, Massachusetts Imm. . (gf) (Entered: 04/15/2003)

Magistrate Judge Frank Maas is so designated. (gf) (Entered: 04/15/2003)

04/16/2003 04/16/2003 04/16/2003 04/23/2003 04/29/2003
05/14/2003 06/02/2003 06/02/2003 06/05/2003
07/25/2003
07/25/2003

3 RETURN OF SERVICE of summons and complaint executed by leaving at One St. Andrews Plaza, NY, NY on 4/14/03. (sb) (Entered: 04/21/2003)
4 AFFIDAVIT OF SERVICE of summons and complaint as to Dept. of Justice by certified mail on 4/14/03. Government Answer due on 6/13/03 for Dept. of Justice. (sb) (Entered: 04/21/2003)
5 AFFIDAVIT OF SERVICE of summons and complaint by Attorney General by certified mail on 4/14/03. (sb) (Entered: 04/21/2003)
6 SCHEDULING ORDER: Pretrial conference for 11:00 a.m. on 5/20/03. ( signed by Judge Lewis A. Kaplan ); (jco) (Entered: 04/24/2003)
7 AMENDED COMPLAINT by National Council, NY Immigration, American Imm., National Imm., National Immigration, Nat'l Imm. Project, Massachusetts Imm. (Government Answer due on 5/9/03 for Dept. of Justice ) amending [1-1] complaint; Summons issued. (cd) (Entered: 05/01/2003)
8 ANSWER to Complaint by Dept. of Justice (Attorney Sarah S. Norman). (moc) (Entered: 05/16/2003)
10 Memorandum to Docket Clerk: Pretrial conference held and concluded on 6/2/03. (ph) (Entered: 06/17/2003)
PRETRIAL CONFERENCE held on 6/2/03 before Judge Lewis A. Kaplan. (ph) (Entered: 06/17/2003)
9 ORDER, the defendant shall move for summary judgment by 7/25/03. The plaintiff shall file an opposition brief by 8/25/03. The defendant shall file a repl brief by 9/8/03. Discovery in this case is stayed pending decision on the motion for summary judgment . ( signed by Judge Lewis A. Kaplan ); (kw) (Entered: 06/09/2003)
11 NOTICE OF MOTION by Dept. of Justice for an Order granting summary judgment in favor of defendant pursuant to FRCP 56 . Return Date not indicated. Statement pursuant to Local Civil Rule 56.1, declarations of Sarah S. Normand, Melanie A. Pustay, M. Edward Whelan, III attached. (yv) (Entered: 07/30/2003)
12 MEMORANDUM OF LAW by Dept. of Justice in support of [11-1] motion for an Order granting summary judgment in favor

08/22/2003
09/12/2003 09/12/2003 10/03/2003 10/03/2003 10/03/2003 10/03/2003 10/07/2003

of defendant pursuant to FRCP 56. Received in night deposit box on 7/25/03 at 5:59 p.m. (yv) (Entered: 07/30/2003)
13 Memo-Endorsement on letter addressed to Judge Kaplan from Sarah S. Normand, dated 8/20/03. counsel on behalf of all parties request a modification of the scheduling order such that plaintiffs' opposition papers will be due on or before 9/12/03 re: [11-1] motion for an Order granting summary judgment in favor of defendant pursuant to FRCP 56 and, defendant's reply papers will be due on or before 10/3/03 re: [11-1] motion for an Order granting summary judgment in favor of defendant pursuant to FRCP 56. Application granted . ( signed by Judge Lewis A. Kaplan ); (yv) (Entered: 08/26/2003)
14 MEMORANDUM OF LAW by National Council, NY Immigration, American Imm., National Imm., National Immigration, Nat'l Imm. Project, Massachusetts Imm. in opposition to [11-1] motion for an Order granting summary judgment in favor of defendant pursuant to FRCP 56 . (sb) (Entered: 09/17/2003)
15 DECLARATION of Omar C. Jadwat by National Council, NY Immigration, American Imm., National Imm., National Immigration, Nat'l Imm. Project, Massachusetts Imm. in opposition to [11-1] motion for an Order granting summary judgment in favor of defendant pursuant to FRCP 56. (sb) (Entered: 09/17/2003)
16 REPLY MEMORANDUM by Dept. of Justice re: [11-1] motion for an Order granting summary judgment in favor of defendant pursuant to FRCP 56 . (cd) (Entered: 10/07/2003)
17 DECLARATION of Sarah Normand by Dept. of Justice in support Re: [16-1] reply memorandum . (cd) (Entered: 10/07/2003)
18 SUPPLEMENTAL DECLARATION of M. Edward Whelan III by Dept. of Justice in support Re: [16-1] reply memorandum . (cd) (Entered: 10/07/2003)
19 SECOND DECLARATION of Melanie Ann Pustay by Dept. of Justice in support Re: [16-1] reply memorandum . (cd) (Entered: 10/07/2003)
20 Memo-Endorsement on letter addressed to Judge Kaplan from Sasrah S. Normand, dated 10/1/03: Granting defendant USDOJ's request for leave to file it's reply memorandum of law in support of its motion for summary judgment of up to 15

11/12/2003 11/12/2003 09/23/2004 09/27/2004
09/28/2004 10/07/2004 10/07/2004

pages . ( signed by Judge Lewis A. Kaplan ). (tp) (Entered: 10/08/2003)
21 NOTICE OF MOTION by National Council, NY Immigration, American Imm., National Imm., National Immigration, Nat'l Imm. Project, Massachusetts Imm. for leave to file a supplemental Declaration and Supplemental Memorandum of Law in further opposition to defendant's motion for summary judgment. Attached is Declaration in support. (djc) (Entered: 11/17/2003)
22 MEMORANDUM OF LAW by NY Immigration, American Imm., National Imm., National Immigration, Nat'l Imm. Project, Massachusetts Imm., Dept. of Justice in support of [21-1] motion for leave to file a supplemental Declaration and Supplemental Memorandum of Law in further opposition to defendant's motion for summary judgment. Attached is Declaration in support. . (djc) (Entered: 11/17/2003)
23 ORDER granting [21] Motion for Leave to File Document . (Signed by Judge Lewis A. Kaplan on 9/22/04) copies sent by chambers.(cd, ) (Entered: 09/27/2004)
24 MEMORANDUM AND OPINION # 90689 re: [11] Motion for Summary Judgment filed by Department of Justice...The defendant's motion for summary judgment dismissing the complaint (docket item 11) is granted to the extent that the plaintiffs' first claim for relief is dismissed insofar as it relates to documents numbered 1 through 22 inclusive, 26 and 27. The motion for summary judgment is denied in all other respects. The defendant is directed to produce documents 23 through 25, on or before 10/12/04, for in camera inspection. Plaintiffs are entitled to summary judgment with respect to document 28, and the defendant is directed to produce that document on or before 10/12/04. (Signed by Judge Lewis A. Kaplan on 9/24/04) "copies mailed by chambers".(rag, ) (Entered: 09/28/2004)
Transmission to Judgments and Orders Clerk. Transmitted re: [24] Memorandum & Opinion,,,, Terminate Motions,,,, to the Judgments and Orders Clerk for preparation of Judgment. (rag, ) (Entered: 09/28/2004)
25 MOTION for an order granting reconsideration of the court's memorandum opinion dated 9/24/04, for a stay pending consideration of appeal. Document filed by Department of Justice. (dle, ) (Entered: 10/12/2004)
26 MEMORANDUM OF LAW in Support re: [25] MOTION for

10/12/2004 10/13/2004 10/14/2004
10/14/2004 10/21/2004

Reconsideration.. Document filed by Department of Justice. (dle, ) (Entered: 10/12/2004)
27 RESPONSE to Motion re: [25] MOTION for Reconsideration. Document filed by National Council of La Raza. (cd, ) (Entered: 10/14/2004)
30 ORDER; that dft. Shall submit the OLC opinion to the court for in camera inspection no later than 10/14/04; The Dft's obligation to produce the document to the plaintiffs is stayed to and including 10/24/04 to permit further reconsideration of whether to appeal. The Court will indicate whether a further stay will be granted when it rules on the motion for reconsideration following in camera inspection. (Signed by Judge Lewis A. Kaplan on 10/12/04) (pl, ) (Entered: 10/16/2004)
28 MEMORANDUM OPINION # 90779. defendant's motion for reconsideration is granted to the extent indicated in this Memorandum Opinion. On reconsideration, the Court adheres to its original decision in all respects save that: 1. Defendant shall produce to plaintiffs, on or before 10/19/04, the portions of documents 23 and 24 that the Dept. previously had marked as exempt, and those portions of document 28 marked "disclose" on copies of that document that will be furnished to counsel for the defendant and filed under seal. 2. Defendant's motion for summary judgment dismissing the complaint is granted also insofar as plaintiffs seek production of document 25. 3. Defendant's motion for a stay is granted to the extent that defendant's obligation to produce document 28, as redacted, is stayed until 4:30 p.m. on 10/24/04. The unredacted copies of documents 23-25 will be filed under seal. (Signed by Judge Lewis A. Kaplan on 10/14/04) (ae, ) (Entered: 10/14/2004)
29 MEMORANDUM OPINION (Corrected) # 90689. The defendant's motion for summary judgment dismissing the complaint [docket item 11] is granted to the extent that the plaintiffs' first claim for relief is dismissed insofar as it relates to documents numbered 1 through 22 inclusive, 26 and 27. The motion for summary judgment is denied in all other respects. The defendant is directed to produce documents 23 through 25, on or before 10/12/04, for in camera inspection. Plaintiffs are entitled to summary judgment w/ respect to document 28, and the defendant is directed to produce that document on or before 10/12/04. (Signed by Judge Lewis A. Kaplan on 10/14/04) (ae, ) (Entered: 10/14/2004)
32 NOTICE OF INTERLOCUTORY APPEAL from [29]

10/21/2004 10/21/2004 10/21/2004 11/05/2004
11/05/2004 11/18/2004
11/18/2004

Memorandum & Opinion,,. Document filed by Department of Justice. Copies of Notice of Interlocutory Appeal mailed to Attorney(s) of Record: OMAR C. JADWAT. (USA NO FILING FEE DUE)(pr, ) (Entered: 10/22/2004)
Transmission of Notice of Appeal to the District Judge re: [32] Notice of Interlocutory Appeal. (pr, ) (Entered: 10/22/2004)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: [32] Notice of Interlocutory Appeal. (pr, ) (Entered: 10/22/2004)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: [32] Notice of Interlocutory Appeal. (pr, ) (Entered: 10/22/2004)
33 ORDER of USCA (Certified Copy) USCA Case Number 045474-cv. Motion for partial stay of district court disclosure, order pending consideration of appeal & expedited briefing schedule & argument. ORDERED that a temporary stay is GRANTED pending submission of the motion for a stay to a panel of the court at 10 am Tuesday 11/2/04. MACKECHNIE, Clerk USCA. Certified: 10/26/04. (pr, ) (Entered: 11/05/2004)
Appeal Remark as to [32] Notice of Interlocutory Appeal filed by Department of Justice USCA Case Number 04-5474-cv: Copy sent to Judge. (pr, ) (Entered: 11/05/2004)
34 LETTER addressed to Judge Lewis A. Kaplan from Omar C.Jadwat dated 11/18/04 re: Plaintiffs letter in brief response to defendant's contention that its filing of an interlocutory notice of appeal deprives this Court of jurisdiction to consider plaintiffs' 11/15/04 request. Document filed by American Immigration Lawyers Association, Massachusetts Immigrant and Refugee Advocacy Coalition, National Council of La Raza, National Immigration Forum, National Immigration Law Center, National Immigration Project of the National Lawyers Guild, New York Immigration Coalition.(sac, ) (Entered: 11/23/2004)
35 LETTER addressed to Judge Lewis A. Kaplan from Omar C. Jadwat dated 11/15/04 re: Plaintiffs request that the Court require defendant to describe briefly the portion of the 2002 OLC opinion that the 10/14/04 opinion of this Court permits the government to redact. Document filed by American Immigration Lawyers Association, Massachusetts Immigrant and Refugee Advocacy Coalition, National Council of La Raza, National Immigration Forum, National Immigration Law Center, National Immigration Project of the National Lawyers

11/18/2004 11/23/2004 12/09/2004 12/22/2004 07/29/2005 08/23/2005
10/05/2005

Guild, New York Immigration Coalition.(sac, ) (Entered: 11/23/2004)
36 LETTER addressed to Judge Lewis A. Kaplan from Sarah S. Normand dated 11/17/04 re: defendant United States Department of Justice in opposition to plaintiff's letter application dated 11/15/04. Document filed by Department of Justice.(sac, ) (Entered: 11/23/2004)
37 MEMORANDUM OPINION #90912; re: plaintiffs' application is granted. The defendant shall supplement its Vaughn index with respect to the 2002 OLC memorandum as indicated above no later than 12/3/04. (Signed by Judge Lewis A. Kaplan on 11/22/04) Copies Mailed By Chambers.(sac, ) (Entered: 11/24/2004)
38 USCA SCHEDULING ORDER as to [32] Notice of Interlocutory Appeal filed by Department of Justice USCA Case Number 04-5474-cv. Roseann B. MacKechnie, Clerk USCA. Appeal Record due by 12/27/2004. Appellant Brief due by 1/3/2005. Appellee Brief due by 2/2/2005. (dt, ) (Entered: 12/09/2004)
39 Appeal Record Sent to USCA (Index). Notice that the Original index to the record on Appeal for [32] Notice of Interlocutory Appeal filed by Department of Justice USCA Case Number 045474, 3 Copies of the index, Certified Clerk Certificate and Certified Docket Sheet were transmitted to the U.S. Court of Appeals. (tp, ) (Entered: 12/22/2004)
40 MANDATE of USCA (Certified Copy) as to [32] Notice of Interlocutory Appeal filed by Department of Justice, USCA Case Number 04-5474-cv. Ordered, Adjudged and Decreed that the judgment of the District Court is AFFIRMED in accordance with the opinion of this court. Roseann B. MacKechnie, Clerk USCA. Issued As Mandate: 7/22/2005. (nd, ) (Entered: 08/01/2005)
41 ENDORSED LETTER addressed to Judge Lewis A. Kaplan from Omar C. Jadwat dated 8/19/05 re: Plaintiffs seeks an extension with the consent of the government so that the parties may attempt to resolve all issues relating to costs and attorneys' fees without the need for further litigation or other involvement of the Court. ENDORSEMENT: granted (Signed by Judge Lewis A. Kaplan on Lewis A. Kaplan) (js, ) (Entered: 08/26/2005)
42 ENDORSED LETTER: addressed to Judge Lewis A. Kaplan

11/14/2005 11/15/2005

from Omar C. Jadwat dated 10/4/05 re: The parties now jointly request that the Court further extend that time up to and including 11/7/05 so that they may continue to discuss a resolution of these issues. ENDORSEMENT: GRANTED no further extensions. (Signed by Judge Lewis A. Kaplan on 10/5/05) (js, ) (Entered: 10/06/2005)
43 STIPULATION AND ORDER OF DISMISSAL; defendant has fully complied with the 9/24/04 and 10/14/04 opinions of this Court and the 5/31/05 opinion of the Court of Appeals. Plaintiffs agree to accept release of the 2002 OLC Opinion and the E-mail documents in full settlement and satisfaction of any and all claims and demands. The United States shall pay to the "American Civil Liberties Union Foundation-Immigrants' Rights Project" the sum of $103,500.00 in full settlement of any and all claims. This action is hereby dismissed with prejudice, subject to the payment of attorney's fees as required in paragraph 4. (Signed by Judge Lewis A. Kaplan on 11/8/05) (kco, ) (Entered: 11/15/2005)
Transmission to Judgments and Orders Clerk. Transmitted re: [43] Stipulation and Order of Dismissal to the Judgments and Orders Clerk. (kco, ) (Entered: 11/15/2005)

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 JUL-22-2005 16:54

US ATTORNEY'S OFFICE
U.S. Department of Justice

212 P.02

United States Attorney
Southern District o/New York

86 Chambers Srreel. 5" Floor New York. New York 10007

July 22, 2005

BY FEDERAL EXPRESS AND FACSIMILE Omar Jadwat, Esq.
ACLU Immigrants' Rights Project 125 Broad Street New York, NY 10004

Re: Dear Mr. Jadwat:

National Council ofLa Raza v. De.partment ofJustice
Dkt. No. 04~5474-cv

In accordance with the mandate issued today by the Second Circuit and the district court's Memorandum Opinion dated October 14, 2004~ enclosed please fmd a copy ofdocument 28 on . the Department ofJustice's Vaughn index. The docwnent has been redacted consistent with the district court's opinion.
Very truly yours,

DAVID N, KELLEY

Enel.

By: ~N-E-lL-M-,-C-O~R~---------Assistant United States Attorney TeL; (212) 637-2707

JUL-22-2005 16:54
,... ~
..

US ATTORNEY'S OFFICE
'.

212
_ ••"_ . '__;".'" .r
V.S. Departmeut ofJustice Office ofLegal Counsel

P.03

Offi&:t' gflhc Assistant Attorney Gcnml

WasMngt!JII, D.C. 20J30

April 37 2002

MEMORANDUM. FOR THE AITORNEY GENERAL
RI!: Non-preemplion ollhe authority olstQtlt and local law tttJjorcement officials to arrest olie1l3 for immigration violations
I

DISCLOSE

explain in Pm I below that the authority

arrest

States. subject only to preemption by federal

Jaw. In Par: II, we reconsider advice rendered by this Office in 1996, shortly before the

enactment ofsection 1252c. We concluded at that time that although the INA does not prc;:clude

U;:) H I I Ur::;I'I1:: r ;:) urI"" 1 \"'1::

C:.LC:

r.l:J<f

DISCLOSE ...----..,

')~~------------------~~--------~----------------,

state police from making arrests for violations of its criminal provisionst it does preclude them

from arrestmg aliCIls on the basis of civil deportabiJity. We now determine that our 1996 advice

was mistaken and that it should 110t provide the background against which seCtion 1252c: is

assessed. We conclude in Part ill that

125

"'......m,,,t

We assume for purposes ofthis memorandum that any arrests by state police comply with Fourth Amendment restrictions. We further assume that States have conferred on state police the necessary state-law authority to m'lke arrests for violation ofthe federal immigration laws. but. note that the existence and extent ofsuch authority is a question ofstate law.
Ex;cept as otherwise noted, this memonmdum does not address. and should not be read as limiting, the ability ofstate poJice to exercise federal arrest authority pursuant to fcdend' authorizatio~ including. for. example. pursuant to the authority ofthe Attorney General to enter into agrecntents with Slates under which state officers or employees perfonn immigration officer functions subject to the direction and supervision of the Attomey GeneraL See 8 U.S.C. § 1357(g) (2000).
I.
We firit adci1;ess whether, iu the absence ofany affinnative authorization under federal . law, States have inherent power (subject to federal preemption) to make arrests for violation of federal law. Otherwise stated, may state police, exercising state law authority only. lawfUlly make arrests for violation offederal law) or do they have power to make such arrests only insofar as they are exercising delegated federal exc:cutive power?
We believe that the answer to this question rests ultimately on the States) status as sovereign entities. The Declaration ofIndepcndencc proclaims that the States ar= "FREE AND INDEPENDENT STATES ... and tbat as FREE AND INDEPENDENT STATES) they have full Power to levy War, cOl1clude Peace, contnlct Alliances, establish Commerce, and to do aU other Acts and Things which·INDEPENDENTSTATES may afright do." (Emphasis added.) The
Urn.ted States Constitution conferred on Congress only the powers "herein granted/' U.S. Canst.
art. I, § 1. and "reserved to the States respectively, or to the peoplc;" the "powe:rs not delegated to
the United States by the Constitution, nor prohibited by it to the States,"' it!. amend. X. Th~
although the Constitution did impose liOmc disabilities on the States, it did not purport to confer,
u.s. or otherwislil be the source o~ their affumative authority. Sell Term Limits, Ihc. v. T/romton,
.s 14 U.S. 779. Sal (1995) (''The ·plan ofthe convention~ as illuminated by the historical
materials•.our opinions. and the text ofthe Tenth Amendment draws a basic distinction between the powers oftile newly created Federal Government and the powers retained by the pre-existing sovereign States. As cruefJustie= Marshall cxplain~) 'it was neither necessmy nor proper to define the powers retained by the States. These powers proceed, not from the people ofAmerica,
-2-

JUL-22-2005 16:54
.• ":~ !-

US ATTORNEY'S OFFICE

212 P,05

"

but from the people ofthe several States; and remain. after the adoption ofthe constitution, what

they were before, except so far as they may be a.bridged l?Y that instrument,"') (quoting Sturges v.

Crow7Iinshield, 17 U.S. (4 Wheat.) 122, 193 (1819»; The Federalist No. 32, at 200 (AJexillder

Hamilton) (Jacob E. Cooke cd, 196"1) ("[TJhe plan of.the [ConstitutionaJ] Convention aims only

J

•

at a partial Union Or consolidation, the State Governments would clearly retain all the rights of

llJvereignty which they before had and which were'not by that act excltm'vely delcg.atcd to the

United States'). The original States that ratified the Constitution instead obtained their authority

from state constitutions or charrers that precl:ded the federal Constitution. And States that

entered the Union after 1789 did so on .fequal footing" with the original States and thus enjoy the

same sovereign status as the original States. See Coyle v. Smilh, 221 U.S. 559,573 (1911)

e'when a new State is admitted into the Union, it is so admitted with all oftIle powers of

sovereignty and jurisdiction which pertain to the original States''),

We therefore do not believe that the authority of state pOlice to make aIt'csts for violation offederal Jaw is limited to those instances in which they are exercising delegated federal power.. We instead believe that such arrest authority inheres in the States~ status as sovereign entities. In
the same way that police in Canada do not exercise delegated Anicle n power when they arrest
someone who has violated U.S. law and turn him over to U.S. authorities, state police) too, need
not be exercising such federal powcr when they make arrests for violation offederal law. Instca~ the power to make suck lllTests inheres in the ability ofone sovereign to acconunodate
. the interests ofanother sove...r.eign•
Case Jaw reflects this same conclusion. No act ofCongress has authorized state police to arrest for federal o£fens=s when they act without an mest wammt. Nonetheless. in United Stales '1'. Di Re, 332 U.S. 581 (1948), the Supreme Court, in the course ofhoJding that e'in absence' ofan
applicable federal statute the law of the state where an arrest withou.t warrant takes place dctennines its validity," id. at 589, impJicitlyadopted the position that States have inherent
authority to authorize their police to make warrantless arrests for federal criminal violations. See id. at 589-90; see also Miller v. Unile.d States, 357 U.S. 301, 30S (1958) (citing Di Re for
proposition that ''the lawfulness ofthe arrest without warrant is to be determined by reference to
state Jaw''); Johnson v. United Slates, 333 U.S. 10, 15 n.5 (1948) C'State law detennines the validity ofarrests without wammt') (citing DE Re). Similarly, in Ml17ah v. United States., 29 F2d 172 (2d Cir. 1928), Judge LeamedHand's opinion for the Second Circuit construed a New York
statute to authorize state police to make warrantless atTests for violation offedcrallaw. Id. at 174. In so doing, Judge Hand specifically rejected the argument that the existence ora federal statute governing state arrestspursuanr ta WQ"ant for federal offenses (the predeeessorto current
section 3041 of title 18) should be understood to preempt state officers fiom making warrantltm
arrests for federal offenses: "it would be llru'aSOnable to suppose th2t [the United States']
puzpose was to deny to itself any help that the states mayallow." [d. ludge Hand~s analysis is
plainly premised on the understanding tbat states have inherent authority to make aucsts for
fecJcral offensest subje~E only to federal preemp~on.

..3-

JUL-22-2005 15:55

US ATTORNEY'S OFFICE

212 P.05
~'I t'~\,.,,\ '••

"
More recent cases in the specific context offederal immign.tion Jaw embody this same understanding. In Gonzales v. Cily()jPeoria. 722 F.2d 468 (9th Cir. 1983), the Ninth Circuit. stating that the flgeneral rule is that local police are not precluded from enforcing f~eral statutes,II itl. at 474, engaged in a preemption analysis: to determiile wbcther Congress had precluded state poJice enforcement ofthe criminal provisions offc:deraJ immigration law. See id.
The Tenth Circuit has similarly opined that a '·state-trooper has gem:raJ investigatory authority 10
inquire into possible immigration violations,'; United Slates \1'. Salinas-Caldero", 728 Fold 1298,
1301 n.3 (10th Cir. 1984), and has applied preemption analysis to dclennme whether a federal ' statute ·'Umit[s] or displace[s] the preexisting general authority ofstate or local police,officers to
investigate and make 8lTCSts for violations offeden!l blW. including immigration laws," United Slal~ \1'. Yasquez~A/varezt 176 F.3d 1294. ]295 (lOth Cir. 1999).

Indeed, the only contrary suggestion ofwhich we are aware is contained in a footnote in a

1989 opinion ofthis Office. In that footnote, after slating that ·'it is not clear \lD.der current law

that local police may enforce non-criminal federal statutes~' and tbat any exercise ofauthority

granted under state law "wopld necessarily have to be consistent with federal authority/' we

opined that "unlike the Qutnorization fot state and local involvement in f,=deral criminal law

enforcement, we mow ofno similar aulh(Jrizariolt in th~ Ilon-crimmal context." Memorandum

for Joseph R. Davis, Assistant Director, Federal Bureau ofInvestigation, from Douglas W. '.

Kmiec. Assistant Attorney Gene;-aI, Office ofLegal Couns~, Re: Handling (JfINS Watmnt.s of

Deportation in relationla NCIC Wanled Perscn File at 4 & n.ll (Apr. 11. 1989) ("'1989 OLC .

Opinion'') (emphasis adde:d:r. We did not fbrther examine or explain the suggestion arising from

our use (Jrthe word "authorization." Jndeed, the contrast that the 1989 OLe Opinion posits .. i

between the: criminal and non-criminal contexts is belied by its own citations to the Di Re c;ase .

and 18 U.S.C. § 3041 (1994), see 1989 OLC Opinion at 9 n.l8: the Supreme Court in Di.Re did

not understand state authority to make arrests for federal off=nses to be limited to the arrests

pursuant to warrant that were authorized (or at least governed by) the predecessor to 18 U.S.C.

§ 3Q41. Moreover, the fact that the 1989 OLC Opinion elsewhere appJies preemption analysis to

the question ofstate police authority to arrest for federal 'offenses, see 1989 OLe Opinion at 4--5*

indicates that the "authori:z:ation"langnage in this footnote should not be regarded as reflecting a

considered view oftrus Office that state arrest authority is dependent on federal. authorization.

,

., ,

Beyond lacking any legal support, the conlIilIy conclusion - i.e., that States, through their

pol~ce, may exercise only the arrest power that Congress has afiiI1tlatively authorized .... would

dramatically upset settled practices. Under sucb a eoncJusion, state police would not have any

authority to make warrantless arrests for federal offenses. InJudge Hand's words, we wou.ld

have to usay that t4ere is no means ofsecuring offenders caught in flagrante, a resuU which

would so impair the exccutioll ofthe laws that it seems to us ina-cciible it should have been

intended.'* Marsh, 29 F.2d at 174. Nor i~ it clear that Congress could delegate suc::h

,

unsupervised authority to the States. See Printz v. United Staltst 521 U.S. 898,922-23 (1997)
(federal executive power-may not be delegated to individuals not subject to -'meaningful

Presidential control"

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DISCLOSE

JUL-22-2005 16:55

US RTTORNEY'S OFFICE

212 P.07

DISCLOSE ---..
II.
In 1996 this Office opined that state police lack the authority to arrest aliens on the basis ofcivil deportability. See Memorandum for Alan D. Bersin, United States Attorney, Southern District ofCalifomia, from Tr::resa Wynn Roseborough, Deputy Assistant Attorney Generalt Office ofLegaJ Counsel, Re: Assistance by California Police in Apprehending O/egal A/iettS 6-7
(Feb. 5, 1996) Ct1996 OLC Opinion"). Section 1252c ~as enacted two months after we rendered
this advice. Because section 12521;: oftitle 8 must be understood against the backdrop ofexisting
lawI we consider it appropriate to re-examine whether the und~tanding ofthe law expressed. in
the 1996 OLC Opinion was accurate. For the reasons explained below, we determine that our 1996 advice was mistaken and that we should instead have concluded that federal statutory law posed no obstacle to the authority ofstate police to .arrest aliens on the basis ofcivil
deportability.
A.
-
The genesis of this Office's 1996 advice lies in the 1983 ruling in Gonzales, where the
Ninth Circuit held that local police officers have the authority to arrest an alien for a violation of the criminal provisions of the INA ifsuch an. arrest is authorized under state law. In that case) a group ofpersons ofMexican de~r:nt challenged a policy ofthe City ofPeoria, Arizona, that
instructed local police to arrest and detain aliens susp~ted ofiIlegally entering the. United States in violation o(the criminalpl"Ohibitions ofsection 1325 oftitle 8. See 722 Fold at 472..73. ,. Observing thatloca! police generally are not precluded from enfon::ing federal statutes and that concurrent enforcement authority is authorized where IQcal enforcemellt would not impair federal regulatory interests, see M. at 474 (citing, inter alia, FlOrida Lime &:Avocado Growers. Inc. v. Paul, 373 U.S. 132 (1963». tbe Court engaged in apreemption'analysis to dctennine whether
Congress bad precluded local enforcement offederal immigration law. See id. In addressing
whether the city possessed "!he power to enforce the criminal provisions of federal immigration laws," see id.• the Ninth Circuit expressly t'assume[dJ that the civil provisions ofthe [mAl ... constitute ... a pervasive regulatory scheme'~ that c;videnced a congressional intent to preempt local enforcement. it/.. at 474--75. By con~ the Ninth Circuit fOllIl9 that the:: criminal
;a. provisions oftne INA were "few in number and reJatively simple in their terms:' at 475, and
were '"not. and could not be. supported by a complex admillistrative strul;:turc," it!. Therefore, the cou~ concluded, the federal government had not preempted local enforcement of the criminal provisions of the INA. See id.
The Ninth Circuit then turned to whr;tbcr state law granted the local polic~ the affitmatiye
authority to make arrests under the criminal provisions ofther INA. After ascertaining that , Arizona Iaw permitted such arrests. the court I'c:mphasize(d] • , A that this [state Jaw) authorization is limited to criminal violations,'~ and noted that local police had failed to distinguish between civil and criminal vioJations by using the term "megal alien" to refer both to an alien who had iJIegaJIy entered the country (a criminal violation) and an alien who was "illegally present" in the United States (a civil viOlation). Id. at 476.
-5-

U~ HI IU~NcY'~ UrrlCc

t-'.k:J8

. ~. DISCLOSE
'.'
This Office first addressed Gonmle.r in the 1989 OLe Opinioo, mwhich we advised the
Federal Bureau ofInvestigation ("Far') that theexistc:zlce ofano.1ltstandfng Warratlt of.. deportation for an aJien provided an illSUfiiQ::utbasis for cnteringthe.a.lim's name into i~s National Crime htfonnation Ccruet' ('lfCIC') Wanted Person File. ~ 1929 OLC Opinion at l. FBI policy provided that only persons whQ ,"ould be'arrested by any law ~ent officer with the power to arrest could he included in the NCIC W~P.eDQD.Fik Dis.:ussing GOllzales at length, We concluded that Gonzales ~ahs dear that local-policc:may-cnforce criminal violations ofthe [INA]:' 1989 OLe Opinion at 5. By contrast. we Dpiuc;d that ''it is not clear under current law that local police.may e:n.fim::e nrm-criminill fcxknJ-srarutes.'" Jd. at 4 &; n.11. Citing Gonzales, we stated that "tbepervasiveJy fed=::all"lZl::lm: afimmigmlion control may preempt a state role in the enforcement ofcivil immipion matters.,.. ilL a14 n.Il. Because the issuance ofa warrant ofdeportation did not necessarily indicate 'tha1.a crimiDallaw had been violated, we concluded that the mere existence of a wammt ofdeparta:a.cm for an alien did not. under FBI policy. justify inclusion ofthe alien's name in the NCIC Wa:n~cd Person File.
B.
The 1996 OLC Opinion directly addressed the circwnstances in which state police could assist the INS in enforcing the federal immigration laws. In that opiniDIlt we relied on Gon.zales for the proposition that fedcrallaw does.Dot preclude state police from en{~l1gthe criminal provisions ofthe INA, See iii. at 4. We concluded, by contrast, that state police '~lack recognized legal authority to stop and detain an alien solely on suspicion afc:iviI ckportibility.'" Id, at 7 (emphasis omitted). Our conclusion :rested'on five authorities. ·Pint. we stated that in Goniales "the Ninth Circllit held that the authority .,fstate officials to c::nforce the provisions ofthe INA 'is limited to criminal violations, In id. at 6. Sl;l;ond. we cited a Califomia appellate cowt case. Gates v. Superior Court, 193 Cal. App. 3d 205 (1987), that we understood to support the Same proposition. Third. we relied on the 1989 OLe Opinion. Founh, we stated that 8 U.S.C. § 1357(a)(2) "imposes substantial restr1ctiol1s C\'C1l upon the authority offoderai officers to make wamntJess arrests for purposes ofeiviJ deportation." 1996 Ole Opinion at 7. Fi~ we cited a Ninth Circuit case. Mounta;" High /(nilling, Int!, v. Renot Sl.F..3d21G (9th Cir. 1995» that applied 8 U.S.C. § 1357(a)(2). See 1996 OLe Opinion at (",7.
, We construe our statement ill the 1996 Ole Opinion that state-police "Iaa recognized legalauthority to stop and detain an alien solely on suspicion ofcivil deportability" as an affil'111ativc conclusion that state police lack. the autborityto arrest aliens on the:: basis ofcivil deportability. [d. at 7 (emphasis added and emphasis omitted). Any possibility that we may have crafted the peculiar phrase ~']ack recognized legal authority" in otde:r to remain asn!lstic: on the question whether state police possess that authority is foreclosed by our follow-on opinion a mere tw.o weeks later, in whi,:h we read the 1996 OLe Opinion to establish "the disability Qfstate ' police to enforce the civilt as opposed to criminal. provisions oftbe federal immigmtion laws.~· Memorandum for Alan D. Benin, United States AttomeYt Southern District ofCalifomia. from

JUL-22-2005 16:55

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212 P.09

DISCLOSE
'.
ruchard 1. Shifftin. Deputy Assist8l'lt Attorney General, Office ofLega] Counsclt Re: Slate
Assistance in ApprehendingIllegal Altens - Part II at I (Feb. 21, J996).

On re-examination, We believe that the authorities we cited in the 199~ OLC Opinion

provide no support for our conclusion that state police lack the authority to arrest aliens solely on

the basis ofcivil deportability. First, our assertion that ~~e Ninth Circuit [in GOlZZ'a/es] held that

the authority ofstate officials to enforce the provisions ofthe lNA "is limited to criminal

violations,mid. at 6, confuses the court's holding on the statc·law question ofwhat authority the .

State ofArizona has conferred on its police officers with the court's mere ossumption in dictum

that the civil provisions ofthe INA preempt state enforcement Second, the language that the

1996 OLC Opinion cites from the state appellate court ruling in G(lIes is that court's summatY of

the trial court's conclusion oflaw. The Gate! court itself did not address a contested question, as

"[n]either side disputes the exclusive authority of the federal government to enforce the civil

provisions of the INA," Gates, 193 Cal. App. 3d at 214-15. Third, the:: 1989 OLC Opinion,

notwithstanding its apparent confusion over the need for affimlative federal authoriution for

state arrcsts for federal offens~ goes no further than to conclude that "it i$ not clear under

current law that local polic~ may enforce non-criminal f~era1 statutcs,'·1989 OLe Opinion at 4

(emphasis added) - a conclusion,that falls wen short of t.bc 1996 OLe Opinion's conclusion that

it is clear that local police may hot enforce non-crimillal federal statutes. Finally. the restrictions

imposed on JNS employees by section 1357(a){2) oftitle S(and recited by the Ninth Circuit in

MoulUain High Knitting) apply equally to warrantless amsts for criminal violations as to

may warrantless arrests for civil violations. We therefore filil to see how section 1357(a)(2) bears in
any way on the question whether slate police arrest aliens for civil deportability.

. / I~ -

•

We note further that the 1996 OLe Opi.nion failed to take account ofthe Tenth Circuit's contrary conclusion in its 1984 roling in $t:Jlinas-Caldllro1l, There. a defendant who .had been
arrested for the crim inal violation oflnnsporting aliens claimed. inter alia, that a state trooper did not have the authority to detain the transported paSsengers while he asked them about their inunigration status. In rejecting this claim, the Tenth Circuit neld that a ··state trooper has general inVestigatory authority to inquire into possibJe immigration violations." 728 Fold at 1301 n.3. Th~ court did not differentiate between criminal and civil violations. Indeed, because there is nq indication in the opinion that there was any reason to believe that the alien passengers had committed any criminal violations, the court's statement appecn to apply .fUlly to civil as well as criminal violations.

More fundamentally, we believe that the 1996 OLe Opinion failed to appreciate tl1e extremely limited and unusual natw"e ofthe preemptioQ q\lestion posed with rc::spcet to state arrests for violation offederal law. Unlike the typical preemption scenario, this question does not involve an attempt by States to =w:t state laws, or to promulgate regulations pUl'S\laDt to state laws, that arguably conflict with federal law or intrude into a field that is reserved to Congress or that federal law bas occupied. What this question instead pmsents is whether States

-7..

· J can assist the federal government by arresting aliens who havevio]atedftderallaw and by turning them over t? federal authorities. In this context., we believe that the question posed in
dictum by the Ninth Circuit in Gonz(1.les - whether the civil provisions ofthe INA constitute a pervasive regulatory scheme - was entirely misplaced. We inst.cad believe 'that the: principle governing our construction offcderal law in tbis C'.OI1tcxt sbowCl haye be=. that voiced by Judge
Learned Hand in Marsh.: that "it would be llm'Ca..Somhle to snpposc that 11hctmited States']
purpose was to deny to itselfany help that the: statcsmzyalIow," 29 F-2dat 174. Consistent
with this principle. we believe that the 1996 OLC:Opinion should havc.appIkd a strong
presumption against preemption ofstate arrest authority. H~ it. done so, it'Should have
concluded that federal law did not preempt sta!e police.from arrc:sting aliens on the basis ofcivil
deponability.

,.

We therefore withdraw the 19960LC Opinion"s advice that feder.aI law precludes state

police from arresting aliens on the basis ofcivil deportability.

.

ilL

.,

We now address whether section 1252(;; preempts state arrest authority. We first present
the legislative history ofsectiofl 12S2c and the Tenth Circuit's interpretation or section 1252c in

Vasquez-Alvarez. We then explain why we agree 'With the Tenth Cjrcuit that section 12S2c does

not in any respect preempt the inherent authority ofthe States to make mests for violations of

the immigration laws.

".

A.

On Apri124, 1996, ConJI'ess enacted the A.nti.teaorism and Effectiv-e Death Penalty Act, Pub, L No. 104-132, 110 Stat. 1214 (1'996) ("AEDPA''). Section 439 of the AEDPA, entitled "Authorizing state and local law enforcement officials to arrest and detain certain illegal aliens," id, TitleN. § 439(a). 110 Stat. at 1276~ is codified as section 12S2c ortitIe 8.

Section 1252" was proposed by Representative: Doolittle.as a floor amendment to H.R
The 2703, 104th Congo (1996), an earlier version o(the AEDPA. See 142 Congo Rcc. 4619 (Mar. 13t
1996) (comments ofRep. DOOlittle). only legislative history ofthe provision is the floor
debate that accompanied Representative DoolittleIS introduction oftbe amendment
Representative Doolittle explained that his amendment was intended to address the problem of
aliens who had been deported following criminal convictions but who retum to the United States and commit more crimes:

In California alone. the lNS deports thousands ofiIIcgal immigrants every year wbo have committed felonies in oJ,JC State, and every year thousands of those same criminal aliens return back again, In fac~ the California Depat1ment,of
Justice recently reported that 98 pen::cnt or all immig:rants who are deportal for

-8 ..

~DISCLOSE

U~ HI IU~NcY'~ urrlLc

1-'.11

committing felonies in California wilJ eventually return to the State, and ofthose, 40 percent will commit crimes again.
Unfortunately, this epidemic is not unique to w-ban areas, but has started to
infest rural America as well. Just a. few ycm ago, in the small rural community of Lincolnt (CaJifornia,} which is located in my district, an illegal alien was found
guilty of a driveby shooting, which was the first drivcby shooting ever in that area. After spending a short time in prison. the criminalaIien was deported out ofth= country by the rNS. Now, despite bis deportation. he rctumcd to the area aftor only 1 week and, without hositatioPJ committed Imothercrime.
With such a threat to our public safety posed by criminal wiens. one would
think that we would give Jaw enforcement all the tools it needs to remove these
criminals from Our streets, but unfortunatelyjust the opposite is true. In fact, the
Federal Government has tied tile hands Df OlJf State and local law enforcement officials by actually prohibiting them from doing theirjDb ofprotecting public
safety_ I was dismayed to learn that the current FeW%aJ law prohibits State and local law enfotcement officials from arresting and detaining criminal aliens whom they encountered through their routine duties.
"
.....
Mr. ChaimUIJl. you wiJl be interested to know that shortly before my
district was victimized fot the.second time by-tbis criminal alien I spake of earlic:r, an area. police officer actually stopp¢ him for 8 traffic violation. With my
amendment the police officer would have been able to put him mjail for being
back in the country illegaUy until the INS could take him into Federal custody. Without it, the officer had to release him, and our area became the victim. ofyet another crime.

(M]y ameodrnent is very.zwrow .and onty (:Overs situations in which the
State or la.ta1 Dflicd:r ~counters criminal aIic:ns within his routine duties. In
addition, the subject can only be heJd ifthe State or local police have obtained
appropriateamiinnation from the INS ofthe ~lcgal status ofthc individual. OnJy
confinncd criminal aliens are at risk ofbcing taken into custod;t.

142 Congo Rec. 4619. The Senate adopted the new provision without discussion. See 142 Congo

Rec, 743~·67 (Conference Rcpon on S. 735; l04th Congo (1996)).

' .

• g..

.'. '.,11
,
\

U.;::J M I I Ur".I ....C.1 ..=- u r r J.~c.
_+ DISCLOSE
B.

r . .L<:::

The only case to address whether section 1252c preempts state azrest authority js the Tenth Circuit's 1999 decision in Vasquez-Alvarez.' In that case, Oklahoma police arrested the defendant because he was an "illegal alien." Y'asquez-Alllarezt 176 F.3d at 1295. It was later discovered that the alien had illegally reentered the counlIy after dcportaticllt in vioJation of section 1326 of title 8. a criminal violation. When the government indicted the defendant, he moved to suppress his post-arrest statements, fl1lgerprints, and identity, arguing that he was arrested in violation of section 1252c::. The defendant contended that state and Jocal police officers could arrest an illegal alien only in accordance with the restrictions set forth in section 1252c and tha.t his arrest did not comport with that provision and was therefore unauthorized.

The Tenth Circuit concluded., however, that section 1252c "does not'limit or displace the preexisting generaJ authority ofsiate or local police officers to investigate and make arrests for
violations offederallawt including immigration laws. Instead, section 12S2c merely creates an adtlitional vehicle for the enforcement of federal i1llIIligration law." Vasquez-Alvarez, 176 F.3d
at 1295. Citing its earJier decision in StJlinas-CaIder(Jnt the; court observed that it bad "held that
stare law-enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws." Yasquez..A.lvarez. 176 Fold at 1296. The court noted
that in addition to this generaJ bHkground authorityt Oklahoma law pennitted local Jaw enfotcement officers to make: arrests for violations offcdera1 Jaw.

The Tenth Circuit found no congressional intent in the text ofser;tioD 1252c to preempt

existing state authority to enforce federal immigration Jaws. Se~ id. at 1297·98. The court

funheropined that the legislative histofy ofsection 12S2c supported its conclusion. Citing the

comments of Representative Doolittle reproduced supra, the: court stated that "the; purpose ~f

§ 1252c was to dispIat:e.a perceiVed fedc:rallimitation on the ability ofstate and local officers to

arrest aliens in the United States in violation ofFederal immigration laws.n [d. at 1298-99. The

court noted that Representative Doolittle, the defendantt the gove:rnmc:nt, md the court had not
"identif[ied] anypre~§ l252c limitations 011 the powers ofstate and local officers to enforce

federal law.·J ld. at 1299 0.4. The court concluded that the "legisJative history does not contain

the:: slightest indication that Congress intended to displace any preexisting enforcement powers

already in the bands ofstate and local officers." Ii. at 1299.

.

The court also relied on the fact that after enacting section 1252c, ''Congress passed a
series ofprovisions designed to encourage cooperation between the federal government and the
states in the enforcement offederal immigration laws:' Id. at 1300 (citing 8 U.S:C. §§ 1103(a)(9)t (e), 1357(g) (2000». The court noted that section 13S7(g}(lO)(B) states that no ..
Connal agreement is necessary for state and local officers "to cooperate with the Attomey General

I The only olller published opinion that cites section 1252c is U"Ited Slale;, 1'. Yilltr-Jle/uqutir, 282 F3d 553, 555-56 (gth Cit, 2002), ill which the Eighth Circuit ruled ~at iii 10000J officer had authority to IUrestaD alien Cor
a criminaJ violation.

-l()"

-

.

JUL-22-2005 16:56
r. . DISCLOSE

US ATTORNEY'S OFFICE

212 P.13

\ 1 in the identificatio~: apprehension. detention, or removal ofaliens not lawfully present in the
" United States," 8 U.S.C. § 13S7(g)(10)(B). The court concluded that these provisions i&evinceO a clear invitation from Congress for state and local agencJes to participate in the proc;ess of enforcing federal immigration laws." Va.sguez..Alvarez. 176 F.3d at 1300. The court acknowledged that "it might be argued that [the cOurt's] interpretation of § 1252c leaves the
provision with nO practical effect." itl.. but the court said that this reason alone was insufficient grounds for the court to find that the provision preempted state law. See id.

c.

We agree with the Tenth Circuit that section 12S2c has no pfeempti~e effect. For the
reasons explained above. we begin with a strong presumption against construing a federal statute
"to deny to [the INS] any help that the states mayalJow." Marsn, 29 F.2d at 174. Nothing in the
text ofsection I252c undercuts this presumption. On the contrmy, section 1252<::, by its terms,
does not purport to override any pre-existing state arrest authority. Rather. it accepts state arrest
authority as a given by providing fedt;:ral Mauthoriz[atlon]" only "to the extent pennitted by relevant State and locaJ law:· 8 U.S.C. § 1252(:(8). And it pU:tports only to override any federaJ law ("Notwithstanding any other provision oflaw") that would deprive state police of the ability "to arrest and detain an individual who-(l) is an aIien.illegalIypresent in the United States; and (2) has previously been convicted ofa felony in the United States and deported or left the United Sta.tes after such conyiction.n It!. Thus. in context. the federal aUlhorizo.lion that section 1252c provides ("State and local law enforcement officials are authorized to arrest and detain") is .
expressly redundant of, and dependent on, existing state aut.h,ority. Jd. (emphasis added). It is
true that section 1252c proceeds to speFity two conditions that state poliee operating pursuant to
ms it must satisfy ~ namely, obtaining prior confinDation iTom the of the individual's
immigration status and transferring such individual promptly into federal custody. But these two conditions apply only to the federal authorization under section 1252c; they do not. by th~ir terms, apply to an exercise ofstait: arrest authority, .. ~

It might be objected that ourrea.ding ofsec::tion 1252c wouJdappear to renda-it
meaningless. We think nott for at least two reasons., First, section 1252e provides a limited safeguard against any other provision offederal law (current or future) beiog construed or applied
to preempt state arrest authority for immigration violations that involve mega} presence. l( for eJtan;lple, a court were otherwise incJin=J (per the Ninth Cireuit~s assumption in dicta in
Gonzales) to misconstrue the provisions ofthe INA as preempting state avthorityto arrest fot civil deponabiIitYt section 1252c; would operate to ensure that state police at least mtained the
authority to make such arrests ofaJicm who had previously been COIlvlCted ofa felony and had been deported or had left the United States after such conviction. SQ;ond, there could well be . reasons why state police would choose.to operate PlU'SU8nt to secticm 1252c with ~eet to such
I aJiens (and might even operate as though section 12520 applied with respect to non.felon aliens), rather than pursuant to ,lbeir unrestricted state.lawauthority. For example. stale police might . belie\le that doing so would foster a mwuaUy beneficial relationship of trust and cooperation with the INS and thereby deter the INS from exercising its regulatory authority to preempt state arrest

-11 ..

l

I

JUL-22-2005 16:56
. . .....,,'1

US RTTORNEY'S OFFICE

212 P.14

authority}
We further note that ifsec:tion 1252c: were somehow to be read to preempt state arrest
authority, it would appear that the preemptive effec:t would have to ex.tend t~ all state arrests for
violations involving illegal presence in the United' States. In other words. for all sllch violatiol'lS,
state poJice would be able to arrest only those aliens who were felons and Who had left the
United States after being convicted. Because such aliens are not readily identifiable Visually, this would mean "that there is no means ofsecuring offenders caught in flagrante" - whether they were felons or not - "a result which would so impair the execution of the laws that it sec:ms to us incredible it should have been intended:' Marsh, 29 F.2d at 174. The fact that nothing in the
legislative history ofsection 1252c remotely suggests such an intent confinns OUf rejection of such a reading.

2 Insofar 3$ ~tate PQlic~ choose: to operate pursuant to sectioa 1252c., we beUevc lhat section 1252.; docs Dot
constiruic an um:onstitutioDal delegation offederal executive authority to slafe police. Under lIC~OD 1252c, the:: {Ole

played'by state police is limited lC) arrest and dclentioll and is dearJy under the direction ortederilauthoritios:

among other thin~. state and local officers may arrest .m individual only after "Qblain[iugI appropriate C~OD

fi'om the. ~~J of~e .status ofsuch Individual and only for such period aftime as may be required for the [lNS] 10

th; take UldJVlduall.lJto Federal cll$tody." 8 U.S.C. § 1252c. Wc!here(orr: believe that st;lt~ police acting pursuant

to Section 12S2c:: atr: subject to "mean~grul Presidential control." Prin(z v. United S141t!! 521 U.S. 898 92.2~23

(1997).

.'

,

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JUL-22-2005 16:56

US ATTORNEY'S OFFICE

212 P,lS
"

.-
We summarize our c~nc)usions: .(1) Slates have itihc:rent powert subject to federal
preemption, to make OlTests for.violation offederaJ J...w~· (2) Because it is ordinarily UIlteaSonable
to assume that Congress intended to deprive the federal government ofwhatever assistance States may proYide in identifYing and cit:tainmg .those who have violated federal Jaw t federal statutes . should be presumed not to p.re~t this.arrest authority. "1'his Office~s 1996 advice: that federal
law precludes state police from am:sti'ng aliens on the: basis ofcivil deportability notn.....~,"'1

DISCLOSE.

~./.~;¥t&. ~..llZ JayS. Bybee Assistant Attomey Gcneral '"
..
DISCLOSE "

-13 .. TOTAL P.15

 
 411 F.3d 350 (2005)
NATIONAL COUNCIL OF LA RAZA, New York Immigration Coalition, American Immigration Lawyers Association, National Immigration Law Center, National Immigration
Forum, National Immigration Project of the National Lawyers Guild, Massachusetts Immigrant and Refugee Advocacy Coalition, American Civil Liberties Union, National
Employment Law Project, Plaintiffs-Appellees, v.
DEPARTMENT OF JUSTICE, Defendant-Appellant.
Docket No. 04-5474-CV.
United States Court of Appeals, Second Circuit.
Argued: March 29, 2005. Decided: May 31, 2005.
3512 *351 *352 Omar C. Jadwat (Lucas Guttentag, Lee Gelernt, on the brief), American Civil Liberties Union, Immigrants' Rights Project, New York, NY, for American Civil Liberties Union; Michael J. Wishnie, American Civil Liberties Union, Immigrants' Rights Project, New York, NY, cooperating counsel, for American Civil Liberties Union; Christopher Dunn, Arthur Eisenberg, Donna Liberman, of counsel, New York Civil Liberties Union Foundation, New York, NY, for New York Civil Liberties Union Foundation; Linton Joaquin, National Immigration Law Center, Los Angeles, CA, of counsel, for National Immigration Law Center, Plaintiffs-Appellees.
Neil M. Corwin, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief) for David N. Kelley, United States Attorney for the Southern District of New York, Peter D. Keisler, Assistant Attorney General, Gregory G. Katsas, Deputy Assistant Attorney General, Douglas N. Letter, Irene M. Solet, Attorneys, Appellate Staff, Civil Division, Department of Justice, Washington, D.C., of counsel, for Department of Justice, Defendant-Appellant.
Before: FEINBERG, SACK, and KATZMANN, Circuit Judges.
KATZMANN, Circuit Judge.
This case calls upon us to consider a conflict between two principles fundamental to our system of government: the public's right to know the policies by which it is governed, and the government's right to obtain frank and confidential counsel as those policies are formulated.
Plaintiffs-appellees, a coalition of advocacy organizations, brought this lawsuit pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosure of an unpublished Office of Legal Counsel memorandum (the "OLC Memorandum" or "Memorandum"). The OLC Memorandum, which was prepared for the Department of Justice in April 2002, analyzes the question of whether state and local law enforcement may lawfully enforce certain provisions of federal immigration law. The district court (Kaplan, J.) held that the Department was required to produce the OLC Memorandum because, while the Memorandum met the threshold requirements for nondisclosure under FOIA's deliberative process exemption, 5 U.S.C. § 552(b)(5), the Department had waived that protection by adopting the Memorandum or incorporating it into official agency policy.
On appeal, the Department argues that it did not expressly adopt or incorporate the OLC Memorandum and that, accordingly, the Memorandum is shielded from disclosure under FOIA's deliberative process exemption. In the alternative, the Department argues that even if the deliberative process privilege does not protect the Memorandum, the Department is nonetheless entitled to withhold the Memorandum on the grounds of attorneyclient privilege. We disagree on both counts and hold that: (1) the Department incorporated the OLC Memorandum into agency policy through its repeated reference to, and reliance on, the Memorandum; and (2) in this context, the attorney-client privilege does not shield the Memorandum from disclosure.

BACKGROUND

The instant dispute arose out of a change in policy instituted by the Department of Justice. Beginning in 1996, the Department took the position that state and local law enforcement lacked authority to enforce the civil, as 353 opposed to criminal, *353 provisions of federal immigration law.[1] This position was set forth in a 1996 memorandum written by the Department's Office of Legal Counsel and published by the Department, which concluded that state and local police lack legal authority to detain individuals based solely on a suspicion of "civil deportability."

In 2002, however, the Department reversed course, taking the position that state and local law enforcement could, in fact, lawfully enforce the civil provisions of immigration law. The Department's change in policy was announced by then-Attorney General John Ashcroft at a June 5, 2002 press conference unveiling the "National Security Entry-Exit Registration System" ("NSEERS"). As the Attorney General explained, NSEERS is an initiative designed to "expand substantially America's scrutiny of those foreign visitors who may pose a national security concern and enter our country." In connection with this initiative, the Attorney General announced that information concerning aliens who overstay their visas or attempt to evade registration requirements 0907 civil immigration violations 0907 will be entered into the National Crime Information Center ("NCIC") database, a system that state and local police officers regularly check during traffic stops and other routine encounters. The Attorney General explained that state and local law enforcement could then voluntarily arrest those individuals on the basis of their immigration violations and transfer them to the custody of federal immigration officials.

In support of this policy, and during that June 5, 2002 press conference, the Attorney General made the first of a number of references to the OLC Memorandum that the plaintiffs here seek disclosed. Specifically, the Attorney General explained:

When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed in the NCIC ... federal law permits them to arrest the individual and transfer the individual to the custody of the INS.

The Justice Department's Office of Legal Counsel has concluded that this narrow, limited mission we are asking state and local police to undertake voluntarily 0907 arresting aliens who have violated criminal provisions of the Immigration and National[ity] Act, or civil provisions that render an alien deportable, those individuals who are listed on the NCIC 0907 that narrow mission is within the inherent authority of the states.

In a similar vein, in response to a letter from one of the plaintiff organizations inquiring as to the authority of states and localities to enforce the civil provisions of immigration law, the Attorney General, by letter dated March 11, 2003, wrote:

Let me first state clearly the policy of the Department on this issue. The Department's Office of

Legal Counsel (OLC) previously opined that state and local law enforcement officials have

inherent authority to make arrests for criminal immigration law violations generally. It has now

additionally opined that they possess inherent authority to arrest individuals whose names have

been entered into the [NCIC database] because they have both (1) violated civil provisions of the

federal immigration laws that render them deportable and (2) been determined by federal

354

authorities *354 to pose special risks, either because they present national security concerns or

because they are absconders who have not complied with a final order of removal or deportation.

Thus, when state and local law enforcement officers encounter an alien who poses special risks

and has been listed in the NCIC database for violating the [Immigration and Nationality Act], they

may arrest that individual and transfer him to the custody of the Immigration and Naturalization

Service (INS). The policy and the authority are no broader than this, and the narrow, limited

mission that we are asking state and local police to undertake is a voluntary one.

(emphases added). Similar language appears in at least three other letters, one written by the Attorney General, the other two written by the Acting Assistant Attorney General and submitted to members of Congress.[2]

In June 2003, Kris Kobach, counsel to the Attorney General, gave what is perhaps the most detailed discussion of the OLC Memorandum during a presentation before the FBI's Criminal Justice Information Services Policy Advisory Board 0907 a presentation attended by, inter alia, representatives from state and local police departments. Kobach began by stating that he would "sort of summarize" the Memorandum and then explained:

So, the question was, it was crystal clear that any criminal violation of the Immigration [and]

Nationality Act could be a basis for an arrest by [a] state and local police officer. But what about a

civil violation 0907 of the Act? There was some ambiguity on this question. The last time the Office of

Legal Counsel had looked at it was back in 1996. And since 1996, Congress had passed several

acts all stating pretty clearly that there was no federal preemption. I don't want to get too much

into the legalese of this, but [the OLC determined] that there was no federal preemption of state

and local assistance for civil violations of the Act versus criminal violations of the Act. In addition,

there were several Circuit court opinions in the 10th U.S. court of appeals, and that also raised the

question rather, rather, crisply that perhaps we need to resolve this issue and just clear up the ...

ambiguity[. I]n a nutshell [the OLC] concluded that there is no federal preemption, there is no

difference between civil and criminal with respect to whether state laws are preempted 0907 by the

355

federal.... [T]he authority to make such arrest[s] is an *355 inherent authority possessed by the

states.

Later in his remarks, Kobach continued:

But as far as the civil-criminal assumption, there really isn't any legal fiber underneath it in the immigration law, at least. And so in the OLC opinion it came out very clearly, and the Attorney General did announce the summary of what that opinion is.... At this point 0907 well there are two things. One is that the OLC opinion doesn't say that immigration enforcement is an inherent authority of the states. It merely says, making an immigration arrest to assist the federal government lies within the inherent powers of the states.

Plaintiffs subsequently filed the instant lawsuit seeking, inter alia, to compel the production of documents relating to the Department's new position regarding the authority of states and localities to enforce civil violations of immigration law, only one of which 0907 the 2002 OLC Memorandum 0907 is relevant on appeal. On the Department's motion for summary judgment, the district court held, in relevant part, that the Department was required to disclose the OLC Memorandum. The district court noted that while the Memorandum fell within the deliberative process exception to FOIA's disclosure requirements and would normally not be subject to disclosure, the Department was nonetheless required to produce the Memorandum because the Department had, through the public statements of its representatives, incorporated the OLC Memorandum into Department policy. See Nat'l Council of La Raza v. Dep't of Justice, 339 F.Supp.2d 572, 585-87 (S.D.N.Y.2004).

The Department sought reconsideration of the district court's decision and urged the district court to review the OLC Memorandum in camera. On October 14, 2004, the district court granted the Department's motion in part, reaffirming its previous order that the bulk of the Memorandum be disclosed, but ordering the redaction of several sections of the OLC Memorandum that were unrelated to the Department's policy. See Nat'l Council of La Raza v. Dep't of Justice, No. 03 Civ. 2559, 2004 WL 2314455 at *1-2, 2004 U.S. Dist. LEXIS 20529, at *5-6 (S.D.N.Y. Oct. 14, 2004). This expedited appeal followed.[3]

DISCUSSION

We review de novo a district court's grant of summary judgment in a FOIA case. See Halpern v. FBI, 181 F.3d 279, 288 (2d Cir.1999). We also review de novo a district court's decision "to require partial production of documents following in camera review, in keeping with the spirit and the text of the FOIA and its presumption in favor of disclosure." Tigue v. United States Dep't of Justice, 312 F.3d 70, 75 (2d Cir.2002) (citation omitted).

FOIA was enacted in order to "promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed." Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999) (internal quotation marks omitted). FOIA strongly favors a policy of disclosure, see, e.g., Halpern, 181 F.3d at 286, and requires the government to disclose its records unless its documents fall within one of the specific, enumerated exemptions set forth in the Act. See 5 U.S.C. § 552(a)(3), (b)(1)-(9); Tigue, 356 312 F.3d at 76. Consistent with FOIA's purposes, *356 these statutory exemptions are narrowly construed. See Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) ("[C]onsistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass." (internal quotations and citations omitted)); Local 3, Int'l Bhd. of Elec. Workers v. NLRB, 845 F.2d 1177, 1180 (2d Cir.1988) (exemptions are "narrowly construed with all doubts resolved in favor of disclosure"). The Department bears the burden of demonstrating that any claimed exemption applies. See Perlman v. United States DOJ, 312 F.3d 100, 105 (2d Cir. 2002); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C.Cir.1982).
At issue in the present appeal is whether the OLC Memorandum is protected under FOIA's fifth exemption ("Exemption 5"), which permits an agency to withhold "inter-agency or intra-agency memorandums or letters which 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). Courts have interpreted Exemption 5 to encompass traditional common-law privileges against disclosure, including the work-product doctrine, and executive, deliberative process and attorney-client privileges. See, e.g., Grand Cent. P'ship, Inc., 166 F.3d at 481. The Department principally argues that the OLC Memorandum is protected by the "deliberative process privilege, a sub-species of work-product privilege that covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Tigue, 312 F.3d at 76 (internal quotation marks and citations omitted).
The deliberative process privilege is designed to promote the quality of agency decisions by preserving and encouraging candid discussion between officials. It is based on "the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news." Klamath, 532 U.S. at 8-9, 121 S.Ct. 1060. An inter 0907 or intra-agency document may be withheld pursuant to the deliberative process privilege if it is: (1) "predecisional," i.e., "prepared in order to assist an agency decisionmaker in arriving at his decision," and (2) "deliberative," i.e., "actually ... related to the process by which policies are formulated." Cuomo, 166 F.3d at 482 (internal quotation marks and citations omitted). See also Tigue, 312 F.3d at 76; Local 3, Int'l Bhd. of Elec. Workers, 845 F.2d at 1180.[4]
Just because a document satisfies these requirements, however, does not mean that the deliberative process privilege bars its disclosure. An agency may be required to disclose a document otherwise entitled to protection under the deliberative process privilege if the agency has chosen "expressly to adopt or incorporate by reference [a]... memorandum previously covered by Exemption 5 in what would otherwise be a final opinion." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). In such a circumstance, the document loses its predecisional and deliberative character, and accordingly, the deliberative process privilege no longer applies. See Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C.Cir.1980) ("[E]ven if 357 the document is predecisional at the time it is prepared, it can lose that status *357 if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public."). As the Supreme Court wrote in Sears, when a document is adopted as agency policy or incorporated therein by reference:
The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports [disclosure].
Sears, 421 U.S. at 161, 95 S.Ct. 1504.[5]

In the instant case, the repeated references to the OLC Memorandum made by the Attorney General and his high-ranking advisors,[6] the substance of their comments, and the way in which their comments were used 0907 that is, to assure third parties as to the legality of the actions the third parties were being urged to take 0907 are sufficient to establish that the Department incorporated the Memorandum into its new policy regarding state and local immigration law enforcement authority. The references to the OLC Memorandum demonstrate that the Department regarded the Memorandum as the exclusive statement of, and justification for, its new policy on the authority of states to enforce the civil provisions of immigration law. For example, in his June 2002 press conference, the Attorney General invoked the OLC Memorandum to justify the Department's policy change, noting expressly that the OLC had now 0907 in contrast to the OLC and the Department's previous position 0907 concluded that states possess the inherent authority to enforce the civil provisions of immigration law. In the Attorney General's March 2003 letter, the Attorney General wrote that he wanted to "state clearly the policy of the Department on this issue" 0907 and then immediately referred to the OLC Memorandum. He concluded by writing that "[t]hus, when state and local law enforcement encounter an alien" listed in the NCIC, they have authority to make an arrest. Other letters from the Attorney General and his staff contained similar language.
358 *358 Finally, there are the comments of Kris Kobach, Counsel to the Attorney General, at a presentation before, inter alia, representatives from state and local law enforcement, that is, the very audience to whom the Department's new policy was aimed. Kobach relied on one and only one source as a justification for the Department's policy: the OLC Memorandum. And he did not merely refer to the Memorandum's conclusions; he gave a self-described "overview" of its contents. To wit, Kobach stated:
So, the question was, it was crystal clear that any criminal violation of the Immigration [and] Nationality Act could be a basis for an arrest by [a] state and local police officer. But what about a civil violation 0907 of the Act? There was some ambiguity on this question. The last time the Office of Legal Counsel had looked at it was back in 1996. And since 1996, Congress had passed several acts all stating pretty clearly that there was no federal preemption. I don't want to get too much into the legalese of this, but [the OLC determined] that there was no federal preemption of state and local assistance for civil violations of the Act versus criminal violations of the Act. In addition, there were several Circuit court opinions in the 10th U.S. court of appeals, and that also raised the question rather, rather, crisply that perhaps we need to resolve this issue and just clear up the ... ambiguity[. I]n a nutshell [the OLC] concluded that there is no federal preemption, there is no difference between civil and criminal with respect to whether state laws are preempted 0907 by the federal.... [T]he authority to make such arrest[s] is an inherent authority possessed by the states.
The foregoing statements make clear that the Attorney General and his high-level staff made a practice of using the OLC Memorandum to justify and explain the Department's policy and to assure the public and the very state and local government officials who would be asked to implement the new policy that the policy was legally sound. Moreover, these statements must be understood in context: The Department had announced a reversal of its policy, and the Department publicly and repeatedly depended on the Memorandum as the primary legal authority justifying and driving this change, and the legal basis therefor. Thus, given the facts and context, the Department cannot satisfy its burden of proving that the deliberative process exemption to FOIA applies to the document here sought. See Taxation With Representation Fund, 646 F.2d at 678 (noting that deliberative process privilege may evaporate if a document "is used by the agency in its dealings with the public" (quoting Coastal States Gas, 617 F.2d at 866)); Montrose Chem. Corp. v. Train, 491 F.2d 63, 70 (D.C.Cir.1974) (explaining that disclosure is required "where a decision-maker has referred to an intra-agency memorandum as a basis for his decision," since "once adopted as a rationale for a decision, the memorandum becomes part of the public record"). See also Arthur Andersen & Co., 679 F.2d at 258.
To be sure, had the Department simply adopted only the conclusions of the OLC Memorandum, the district court could not have required that the Memorandum be disclosed. Mere reliance on a document's conclusions does not necessarily involve reliance on a document's analysis; both will ordinarily be needed before a court may properly find adoption or incorporation by reference. In Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975), for example, plaintiffs sought reports prepared by two 359 subordinate divisions *359 of the Renegotiation Board, an agency established to ascertain whether government

contractors had received, and were required to refund, "excessive profits." The reports were given to the Board, which simply ordered or denied a "clearance" 0907 a determination that no excessive profits were realized 0907 without any substantive reasoning or even a reference to the reports. Id. at 185-86, 95 S.Ct. 1491. Moreover, the Board was in no way bound by the reports' recommendations, nor the reasoning contained therein; the reports were simply prepared for the Board as an aid to Board deliberation. Id. at 177, 95 S.Ct. 1491. Under these circumstances, the Supreme Court held that the reports had not been adopted or incorporated by the Board, as "the evidence utterly fails to support the conclusion that the reasoning in the reports is adopted by the Board as its reasoning, even when it agrees with the conclusion of a report...." Id. at 184, 95 S.Ct. 1491.
Certainly, in situations like Grumman, where an agency, having reviewed a subordinate's non-binding recommendation, makes a "yes or no" determination without providing any reasoning at all, a court may not infer that the agency is relying on the reasoning contained in the subordinate's report. See Casad v. United States Dep't of Health and Human Servs., 301 F.3d 1247, 1252-53 (10th Cir.2002) (holding that a report relied upon by agency in determining whether or not to award a grant had not been adopted, as "[t]here is no indication in the record that, in funding the ... grant, the [agency] expressly adopted the reasoning" of the report); Afshar v. Dep't of State, 702 F.2d 1125, 1143 n. 22 (D.C.Cir.1983) (noting that "[i]f the agency merely carried out the recommended decision without explaining its decision in writing, we could not be sure that the memoranda accurately reflected the decisionmaker's thinking"). Courts have similarly honored the deliberative process privilege where an agency has only casually referred to a document, because a casual reference to a privileged document does not necessarily imply that an agency agrees with the reasoning contained in those documents. See Tigue, 312 F.3d at 81 (holding that two minor references to a document protected by the deliberative process privilege were insufficient to establish adoption or incorporation); Access Reports v. Dep't of Justice, 926 F.2d 1192, 1197 (D.C.Cir.1991) (one "confused statement" that might have been a reference to the document at issue "fell far short of the express adoption required by Sears"). See also Common Cause v. IRS, 646 F.2d 656, 660 (D.C.Cir.1981). Rather, there must be evidence that an agency has actually adopted or incorporated by reference the document at issue; mere speculation will not suffice.
The instant case, however, is different. The record makes clear that the Department embraced the OLC's reasoning as its own. The OLC Memorandum was "used by the agency in its dealings with the public," Coastal States Gas, 617 F.2d at 866, as the sole legal authority for the Department's claim that its new policy had a basis in the law; indeed, the Department repeatedly invoked the OLC Memorandum to assure those outside of the agency that its policy was lawful and to encourage states and localities to take actions that the Department desired. See supra. The Department therefore relied on the OLC Memorandum not only to justify what it, the Department, would do as a result of its deliberations, but also to justify what a third party 0907 "state and local law enforcement" 0907 should and could lawfully do. The latter use of the OLC Memorandum by Department personnel 360 is powerful evidence that the Department explicitly adopted the OLC Memorandum as part of *360 its policy. In these circumstances, "the public can only be enlightened by knowing what the [agency] believes the law to be." Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C.Cir.1997). To quote again from Sears,
The public is only marginally concerned with reasons supporting a policy which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground. In contrast, the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted. These reasons, if expressed within the agency, constitute the "working law" of the agency....[7]
Sears, 421 U.S. at 152-53, 95 S.Ct. 1504. Here, as the district court cogently concluded, "The Department's view that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA." La Raza, 339 F.Supp.2d at 587.
Finally, the Department argues that even if the OLC Memorandum is not entitled to protection under the deliberative process privilege, it may nonetheless withhold the Memorandum on the grounds that the Memorandum is independently protected from disclosure by the attorney-client privilege, also an exception to FOIA's disclosure requirements. See In re Grand Jury Investigation, 399 F.3d 527, 533 (2d Cir.2005) (noting that "[c]ourts have construed Exemption 5 as covering materials protected by the attorney-client privilege"). We disagree. Like the deliberative process privilege, the attorney-client privilege may not be invoked to protect a

document adopted as, or incorporated by reference into, an agency's policy. In such circumstances, the principal rationale behind the attorney-client privilege 0907 "to promote open communication between attorneys and their clients so that fully informed legal advice may be given," In re John Doe, Inc., 13 F.3d 633, 635-36 (2d Cir.1994) 0907 like the principal rationale behind the deliberative process privilege, evaporates; for once an agency adopts or incorporates document, frank communication will not be inhibited. Indeed, once an attorney's (or employee's) recommendation becomes agency law, the agency is then responsible for defending that policy, and the attorney (or employee) "will generally be encouraged rather than discouraged" by public knowledge that their policy suggestions or legal analysis have been adopted by the agency. See Sears, 421 U.S. at 161, 95 S.Ct. 1504. Disclosure is therefore appropriate in such circumstances. See Falcone v. IRS, 479 F.Supp. 985, 990 (E.D.Mich.1979) (stating that adopted documents are not protected by the attorney-client privilege, and noting that "broad attorney-client privilege would permit legal opinions, recognized as authoritative interpretations within 361 the agency, to be hidden from the public. Further, it is clear that the purpose of the privilege *361 is not to protect communications which are statements of policy and interpretations adopted by the agency."). See also Niemeier, 565 F.2d at 974 ("Where litigation is foreclosed as an option and the agency expressly chooses to make use of legal memoranda in its final decision, this choice eliminates any claim of attorney work product privilege.... Under these circumstances, such documents are not the ideas and theories which go into the making of the law, they are the law itself, and as such should be made available to the public.") (footnotes and internal quotation marks omitted).[8]
We cannot allow the Department to make public use of the Memorandum when it serves the Department's ends but claim the attorney-client privilege when it does not. Because the Department, in light of all the facts and circumstances set forth above, incorporated the OLC Memorandum into the Department's policy, the attorneyclient privilege cannot here be invoked to bar that Memorandum's disclosure.[9]
CONCLUSION
For the foregoing reasons, the order of the district court is affirmed.
[1] Civil violations of immigration law include those violations 0907 such as overstaying one's visa or entering the United States without proper documentation 0907 that result in administrative proceedings. This is in contrast to criminal violations 0907 for example, document fraud or illegal re-entry 0907 that give rise to adjudication within the criminal justice system.
[2] By letter dated May 13, 2003, the Attorney General wrote to the Deputy Superintendent of the Boston Police Department using almost identical language. The Attorney General noted that although the OLC "previously opined that states possess inherent authority to arrest aliens for criminal immigration law violations," "[i]n 2002, the OLC additionally opined that states also possess inherent authority to arrest aliens" who have, inter alia, "violated civil provisions of the federal immigration laws that render them deportable." (emphasis in the original). Another May 2003 letter, this one sent to Congressman Luis V. Gutierrez by Jamie E. Brown, the Acting Assistant Attorney General, uses identical language, and also notes that "the transfer of the immigration enforcement function from the Department of Justice to the Department of Homeland Security does not affect the OLC opinion." And in that same month, the Acting Assistant Attorney General responded to questions posed by the Congressman F. James Sensenbrenner, Jr., Chairman of the House Committee on the Judiciary, by quoting the Attorney General's June 5, 2002 press conference comments about the OLC Memorandum and explaining that the OLC opined in April of 2002 that "states also possess inherent authority" to enforce civil provisions of the immigration law and that the "federal government has never preempted this authority."
[3] Although the district court declined to grant a stay pending appeal, see La Raza, 2004 WL 2314455 at *2-3, 2004 U.S. Dist. LEXIS 20529, at *8-9, we subsequently granted such a stay.
[4] Plaintiffs effectively concede on appeal that the OLC Memorandum satisfies these requirements, and we accordingly presume as much for the purposes of this appeal.

[5] While the Department urges us to adopt a bright-line test 0907 whereby a document may be deemed expressly adopted or incorporated only in the event that an agency, in essence, uses specific, explicit language of adoption or incorporation 0907 such a test is inappropriate because courts must examine all the relevant facts and circumstances in determining whether express adoption or incorporation by reference has occurred. See, e.g., Tigue, 312 F.3d at 81. See also Arthur Andersen & Co., 679 F.2d at 258; Taxation With Representation Fund v. IRS, 646 F.2d 666, 678 (D.C.Cir. 1981); Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir.1977).
[6] The Department argues, in substance, that we should disregard any statements made by individuals other than the Attorney General on the grounds that those employees lack the authority to set Department policy and therefore could not adopt or incorporate the OLC Memorandum through their statements. However, even assuming arguendo that these employees do not themselves have the power to adopt or incorporate the OLC Memorandum, their statements serve as evidence of the Department's position on the matter. Moreover, there is absolutely no suggestion in the record that any of the above-described statements made by Department employees, in their capacity as Department representatives, were unauthorized or inaccurate statements of the Department's position.
[7] Moreover, to the extent that the Department argues that the substance of the OLC Memorandum goes beyond the scope of what the Department actually adopted or incorporated, we acknowledge that an agency may adopt or incorporate only part of an otherwise-protected document. In such a situation, redaction 0907 rather than complete non-disclosure 0907 is the appropriate remedy. Here, the district court addressed precisely this concern and, we find, properly redacted "an introductory section that reveals the process of policy formulation within the Department as well as a section analyzing an issue to which the Department has not referred in any public statements brought to the [district court's] attention." Nat'l Council of La Raza, 2004 WL 2314455, at *2, 2004 U.S. Dist. LEXIS 20529, at *6. The rest of the Memorandum consists of the reasoning referenced and relied on by Department officials and, as the district court properly held, should be disclosed.
[8] This is consistent with FOIA's general requirement that "statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register" must be disclosed. 5 U.S.C. § 552(a) (2)(B).
[9] Because we conclude that the OLC Memorandum is not exempt from disclosure under Exemption 5, we need not reach plaintiffs' alternative argument that the Department waived any privilege by releasing the Memorandum outside of the executive branch.
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