FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRANSGENDER LAW CENTER; JOLENE 

K. YOUNGERS, as personal 

administrator for the wrongful death 

estate of Roxsana Hernandez,

Plaintiffs-Appellants,

v.

IMMIGRATION AND CUSTOMS 

ENFORCEMENT; U.S. DEPARTMENT 

OF HOMELAND SECURITY; OFFICE 

FOR CIVIL RIGHTS AND CIVIL 

LIBERTIES - UNITED STATES 

DEPARTMENT OF HOMELAND 

SECURITY,

Defendants-Appellees.

No. 20-17416

D.C. No.

3:19-cv-03032-

SK

OPINION

Appeal from the United States District Court

for the Northern District of California

Sallie Kim, Magistrate Judge, Presiding

Argued and Submitted November 16, 2021

San Francisco, California

Filed May 12, 2022
2 TRANSGENDER LAW CENTER V. ICE

Before: Sidney R. Thomas and M. Margaret McKeown, 

Circuit Judges, and Jane A. Restani,* Judge.

Opinion by Judge McKeown

SUMMARY**

Freedom of Information Act

The panel reversed the district court’s partial summary 

judgment in favor of federal agencies in a Freedom of 

Information Act (“FOIA”) action involving requests for 

government documents related to an asylum-seeker’s death 

in federal custody; vacated the district court’s mootness 

determination; and remanded.

The Transgender Law Center and Jolene K. Youngers 

(collectively “TLC”), acting on behalf of Roxsana 

Hernandez’s family and estate, submitted two FOIA 

requests. The first FOIA request was directed to the U.S. 

Immigration & Customs Enforcement (“ICE”), and the 

second was directed to the Department of Homeland 

Security Office for Civil Rights and Civil Liberties. TLC 

filed suit in district court seeking declaratory and injunctive 

relief. The district court granted TLC’s request for 

declaratory judgment that the agencies had failed to timely 

respond to their FOIA requests, but in all other respects ruled 

* The Honorable Jane A. Restani, Judge for the United States Court 

of International Trade, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
TRANSGENDER LAW CENTER V. ICE 3

for the agencies, holding that they had adequately complied 

with the FOIA requests, had conducted an adequate search, 

had appropriately applied FOIA exemptions, and had 

provided adequate Vaughn indices.

The panel first considered whether the district court erred 

in holding that the agencies’ search was “adequate.” Joining 

the other circuits that had considered the issue, the panel held 

that the agencies had the burden to demonstrate adequacy 

“beyond material doubt.” Applying that standard, the panel 

concluded that the Government failed to carry its burden 

because the agencies did not appropriately respond to 

positive indications of overlooked materials provided by 

TLC and did not hew to their duty to follow obvious leads. 

The panel therefore reversed the district court’s summary 

judgment and remanded to the district court to direct the 

agencies to properly comply with TLC’s FOIA requests.

The panel next considered the sufficiency of the 

agencies’ Vaughn indices. A Vaughn index is a submission 

that identifies the withheld documents, the claimed FOIA 

exemptions, and a particularized explanation of why each 

document fell within the claimed exemption. The panel held 

that the agencies’ Vaughn indices were filled the boilerplate 

or conclusory statements; and this high-level, summary 

approach resulted in an unacceptable lack of specificity and 

tailoring that undermined TLC’s ability to contest the 

agencies’ withholdings. The panel remanded to the district 

court to direct the agencies to provide specific, nonconclusory Vaughn indices.

The agencies withheld and redacted information under 

FOIA Exemptions 5, 6, 7(C), and 7(E). First, under FOIA 

Exemption 5, the Government need not disclose “interagency or intra-agency memorandums or letters that would 
4 TRANSGENDER LAW CENTER V. ICE

not be available by law to a party other than an agency in 

litigation with the agency.” 5 U.S.C. § 552(b)(5). This 

allows agencies to withhold privileged information, 

including documents revealing an agency’s deliberative 

process. The panel held that the district court erred in 

treating all drafts as necessarily covered by the deliberative 

process privilege. Simply designating a document as a 

“draft” did not automatically make it privileged. The panel 

remanded to the district court to direct the release of the draft 

mortality review and the draft press statements. The district 

court should also reconsider the other assertions of 

deliberative process privilege. Second, Exemption 6 applies 

to “personnel and medical files and similar files the 

disclosure of which would constitute a clearly unwarranted 

invasion of personal privacy.” 5 U.S.C. § 552(b)(6). The 

panel held that the district court erred in permitting the 

agencies to withhold email domains under Exemption 6. 

The panel remanded to the district court to direct the 

agencies to release the requested documents with the email 

domains redacted. For similar reasons, the panel held that 

the district court erred in permitting the agencies to withhold 

email domains under FOIA Exemption 7(C). Third, FOIA 

Exemption 7(E) allows agencies to withhold certain “records 

or information compiled for law enforcement purposes.” 

5 U.S.C. § 552(b)(7)(E). The agencies broadly invoked 

Exemption 7(E). The district court held that the withheld 

information was categorically exempted under the 

Exemption. The panel held that this finding was overbroad, 

and the district court should have analyzed whether the 

withheld documents were, in fact, law enforcement 

techniques and procedures, and not guidelines (which for 

exemption require additional information to show that 

disclosure “could reasonably be expected to risk 

circumvention of the law”). In this situation a categorical 

exclusion could not be sustained as the panel had no basis to 
TRANSGENDER LAW CENTER V. ICE 5

review whether “techniques and procedures” were at issue. 

The panel remanded for further clarification. 

The panel next considered the segregability of portions 

of the record from the exempt portions. The panel held that 

the Government failed to come forward with clear, precise, 

and easily reviewable explanations for why information was 

not segregable. The panel remanded for the district court to 

make specific findings as to whether factual information was 

properly segregated and disclosed in all documents.

The panel held that the district court did not err by failing 

to make a finding on the Government’s withholding of 

certain documents as “non-responsive” or “duplicative.”

TLC argued at the trial stage that the agencies unlawfully 

denied two expedited processing requests it submitted in 

January and August of 2020. The district court determined 

that the expedited processing requests were moot. Because 

the panel is remanding due to the inadequacy of the 

agencies’ compliance, the panel vacated the mootness 

determination, which should be reconsidered by the district 

court.
6 TRANSGENDER LAW CENTER V. ICE

COUNSEL

Irene Lax (argued), Grant & Eisenhofer P.A., New York, 

New York; Kimberly A. Evans, Grant & Eisenhofer P.A., 

Wilmington, Delaware; R. Andrew Free, Law Office of R. 

Andrew Free, Nashville, Tennessee; for PlaintiffsAppellants.

Laura E. Myron (argued) and Abby C. Wright, Appellate 

Staff; Stephanie Hinds, Acting United States Attorney; 

Brian M. Boynton, Acting Assistant Attorney General; Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Defendants-Appellees.

OPINION

McKEOWN, Circuit Judge:

At the heart of this case is an effort by advocates to learn 

about the circumstances of an asylum-seeker’s tragic death 

in federal custody. The Freedom of Information Act exists 

for just such a purpose—to ensure an informed citizenry, 

promote official transparency, and provide a check against 

government impunity. Yet here the advocates’ FOIA 

requests met first with silence and then with stonewalling; 

only after the advocates filed suit did the government begin 

to comply with its statutory obligations. Our task is to 

discern whether the government’s belated disclosure was 

“adequate” under FOIA. We conclude that it was not.

BACKGROUND

On May 9, 2018, Roxsana Hernandez, age 33, entered 

the United States seeking asylum. Hernandez, a transgender 

woman, was fleeing her home country of Honduras after 
TRANSGENDER LAW CENTER V. ICE 7

experiencing persecution on account of her gender identity. 

Upon entering the United States, Hernandez, along with 

several other transgender asylum seekers, was detained by 

officials from U.S. Customs & Border Patrol (“CBP”). 

According to the complaint, Hernandez’s health began to 

deteriorate rapidly, causing her to lose weight, endure 

diarrhea and a persistent fever, and frequently vomit and 

cough up bloody phlegm. Hernandez was seen by medical 

staff on May 11, 2018, and she disclosed that she had 

untreated HIV and was experiencing significant illness, 

including cough and fever. Her physicians recommended 

that she receive vital HIV treatment, but U.S. Immigration 

& Customs Enforcement (“ICE”) officials refused and 

instead shuttled Hernandez and the other women to various 

holding, processing, and detention facilities in the days that 

followed, depriving them of food, water, sleep, and 

opportunities to relieve themselves.

On May 16, 2018, Hernandez arrived at Cibola 

Detention Center, a private facility managed by CoreCivic, 

an ICE contractor. The following day, she was taken to a 

local hospital and then airlifted to an intensive care unit. Yet 

Hernandez’s health continued to deteriorate, and on May 25, 

2018, she died while in the custody of ICE officials.

Hernandez’s death provoked widespread public outcry, 

including calls for inquiries into the deficiencies in medical 

care provided by CBP and ICE. In early 2019, the 

Transgender Law Center and Jolene K. Youngers 

(collectively “TLC”), acting on behalf of Hernandez’s 

family and estate, submitted two Freedom of Information 

Act (“FOIA”), 5 U.S.C. § 552, requests seeking government 

records about Hernandez’s detention and death. The first 

FOIA request was directed to ICE, and the second was 

directed to the Department of Homeland Security (“DHS”) 
8 TRANSGENDER LAW CENTER V. ICE

Office for Civil Rights and Civil Liberties (“the Civil Rights 

Office”).

Months later, having received no records from either ICE 

or the Civil Rights Office,1 TLC filed suit in district court 

seeking: (1) declaratory relief that ICE, DHS, and the Civil 

Rights Office (collectively “the Government” or “the 

agencies”) had violated FOIA; (2) injunctive relief 

compelling the agencies to conduct adequate searches for the 

relevant records and release them; and (3) costs and 

attorneys’ fees.

The suit itself apparently prompted ICE and the Civil 

Rights Office to begin disclosure, but TLC was displeased 

by the pace and adequacy of release, in part because the 

agencies refused to disclose either the mortality and 

morbidity review or the root cause analysis. TLC then 

submitted a third FOIA request.

In total, TLC received 158 pages from the Civil Rights 

Office and 1,591 pages from ICE. The agencies ultimately 

released 5 pages and 1 excel spreadsheet in response to the 

request for documents that went into the mortality review; 

the agencies informed TLC that they had conducted no root 

cause analysis. TLC has alleged that DHS video 

surveillance footage of Hernandez disappeared despite 

receipt of letters requiring its preservation. The agencies 

redacted numerous documents and claimed that many others 

were exempted from disclosure altogether.

On August 31, 2020, the agencies filed a motion for 

summary judgment, arguing that their production was 

1 In their brief, the agencies claim that this was “[d]ue to [a] lapse in 

appropriations . . . and [a] backlog of FOIA requests received by ICE.”
TRANSGENDER LAW CENTER V. ICE 9

complete and “adequate.” TLC filed a cross-motion for 

summary judgment, arguing that the agencies improperly 

denied expedited search requests related to the FOIA 

requests at issue, failed to conduct an adequate search, 

improperly applied each of the FOIA exemptions, and 

furnished insufficient Vaughn indices. The district court 

granted TLC’s request for declaratory judgment that the 

agencies had failed to timely respond to their FOIA requests, 

but in all other respects ruled for the agencies, holding that 

they had “adequately complied with [TLC’s] FOIA 

requests,” had “conducted an adequate search,” had 

“appropriately applied FOIA exemptions to the documents 

at issue,” and had provided “adequate” Vaughn indices. 

TLC timely appealed.

ANALYSIS

We review de novo a district court’s grant of summary 

judgment. Animal Legal Def. Fund v. FDA, 836 F.3d 987, 

988–89 (9th Cir. 2016) (en banc) (per curiam). We therefore 

employ the same standard used by the district court and must 

“view the evidence in the light most favorable to the 

nonmoving party, determine whether there are any genuine 

issues of material fact, and decide whether the district court 

correctly applied the relevant substantive law.” Id. at 989.

I. ADEQUACY OF THE GOVERNMENT’S SEARCH

We first consider whether the district court erred in 

holding that the agencies’ search was “adequate.” To do so, 

we clarify the precise burden that agencies bear in 

demonstrating the adequacy of their search. In accord with 

well-established precedent, the parties agree that the trial 

court must assess whether the Government has met its 

burden of demonstrating that its search was “reasonably 

calculated to uncover all relevant documents.” Hamdan v. 
10 TRANSGENDER LAW CENTER V. ICE

Dep’t of Just., 797 F.3d 759, 770 (9th Cir. 2015). According 

to the agencies, in order to make such an assessment the 

court must simply determine whether the agency’s search 

was “adequate.” By contrast, TLC asserts that, while a court 

must determine whether the search was “adequate,” the 

agency has a burden to demonstrate adequacy “beyond 

material doubt.”

The district court assessed adequacy of the search but did 

not address the agencies’ precise burden of proof. We join 

our sister circuits and hold that “beyond material doubt” is 

the appropriate standard. Applying that standard, we 

conclude that the Government has failed to carry its burden.

A. The Government must prove adequacy “beyond 

material doubt”

Circuit courts across the country have stated that 

agencies must demonstrate adequacy “beyond material 

doubt” or “beyond a material doubt.” See, e.g., Miccosukee 

Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 

1248 (11th Cir. 2008); Morley v. CIA, 508 F.3d 1108, 1114 

(D.C. Cir. 2007); Miller v. Dep’t of State, 779 F.2d 1378, 

1383 (8th Cir. 1985). District courts in every circuit, 

including the Ninth Circuit, use this standard, and no circuit 

has explicitly rejected it. See, e.g., Informed Consent Action 

Network v. NIH, No. CV-20-01277-PHX-JJT, 2021 U.S. 

Dist. LEXIS 118185, at *9 (D. Ariz. June 24, 2021); Our 

Child.’s Earth Found. v. Nat’l Marine Fisheries Serv., 85 F. 

Supp. 3d 1074, 1082 (N.D. Cal. 2015); S. Yuba River 

Citizens League v. Nat’l Marine Fisheries Serv., No. CIV. 

S-06-2845 LKK/JFM, 2008 U.S. Dist. LEXIS 107177, 

at *35 (E.D. Cal. June 20, 2008).

Demonstrating adequacy “beyond material doubt” is, to 

be sure, a heavy burden, but such a burden appropriately 
TRANSGENDER LAW CENTER V. ICE 11

reflects the purpose and policy of FOIA, including 

transparency, public access, and an informed citizenry. See

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 

(1978) (“The basic purpose of FOIA is to ensure an informed 

citizenry, vital to the functioning of a democratic society, 

needed to check against corruption and to hold the governors 

accountable to the governed.”); Hamdan, 797 F.3d at 769–

70 (“Government transparency is critical to maintaining a 

functional democratic polity, where the people have the 

information needed to check public corruption, hold 

government leaders accountable, and elect leaders who will 

carry out their preferred policies. Consequently, FOIA was 

enacted to facilitate public access to [g]overnment 

documents by establish[ing] a judicially enforceable right to 

secure [government] information from possibly unwilling 

official hands.” (alterations in original) (internal quotation 

marks omitted)).

Requiring the Government to meet the “beyond material 

doubt” standard ensures that the “adequacy of an agency’s 

search for requested documents is judged by a standard of 

reasonableness.” Miller, 779 F.2d at 1383 (citing Weisberg 

v. Dep’t of Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983)). 

This approach properly places a concrete burden of proof on 

the Government, requiring an agency to show that it has 

undertaken all reasonable measures to uncover all relevant 

documents. This standard also gives teeth to the adequacy 

standard by preventing agencies from blithely asserting 

adequacy without backing up such an assertion.

Aligning ourselves with the other circuits to consider the 

issue, we conclude that, under FOIA, agencies bear the 

burden of demonstrating the adequacy of their search beyond 

a material doubt.
12 TRANSGENDER LAW CENTER V. ICE

B. The agencies failed to demonstrate adequacy 

beyond material doubt

Applying this standard, we hold that the agencies failed 

to meet their burden because they did not appropriately 

respond to “positive indications of overlooked materials” 

provided by TLC, Hamdan, 797 F.3d at 771, and did not hew 

to their duty to follow “obvious leads,” Valencia-Lucena v. 

U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999).

“An agency can demonstrate the adequacy of its search 

through ‘reasonably detailed, nonconclusory affidavits 

submitted in good faith.’” Hamdan, 797 F.3d at 770 

(quoting Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 

1985)). The affidavits need not “set forth with meticulous

documentation the details of an epic search for the requested 

records,” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) 

(per curiam), and they “are presumed to be in good faith,”

Hamdan, 797 F.3d at 770 (citing Ground Saucer Watch, Inc. 

v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (per curiam)). 

Ultimately, the adequacy of a search is judged “not by the 

fruits of the search, but by the appropriateness of the 

methods used to carry out the search.” Iturralde v. 

Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 

2003).

Here, summary judgment was inappropriate because 

TLC provided the agencies with both “well-defined 

requests” and “positive indications of overlooked materials,” 

Hamdan, 797 F.3d at 771, as well as “leads that emerge[d] 

during [the agencies’] inquiry,” Campbell v. Dep’t of Just., 

164 F.3d 20, 28 (D.C. Cir. 1998). In the first FOIA letter, 

TLC included two pages of detailed search requests. In later 

communiques, TLC provided additional search leads that 

emerged as a result of a state-level public records request 

TLC had made of CoreCivic, the ICE contractor that ran the 
TRANSGENDER LAW CENTER V. ICE 13

detention facility in which Hernandez died. TLC also 

provided detailed indications that the agencies’ initial 

production was lacking many significant documents within 

their possession. For example, TLC identified several 

relevant documents turned over by CoreCivic that were not 

produced by the agencies, despite—all agree—being in the 

agencies’ possession. And TLC’s follow-up explanations 

were not cursory complaints—TLC identified 48 custodian 

email accounts (14 ICE enterprise level accounts, 32 ICE 

individual custodian emails, and 2 DHS individual custodian 

emails) that the agencies apparently refused to search.

In response, the agencies claimed that TLC has “no basis 

to contend that relevant documents were not produced from 

these accounts . . . .” Because ICE and the Civil Rights 

Office “appropriately redacted all non-public facing 

employee names, including their email addresses, which 

included the names,” the agencies may well have already 

turned over emails belonging to those accounts. Yet were a 

court to accept this argument, it would effectively eviscerate 

the FOIA right. The agencies’ response—in effect, we may

have already done this search but you’ll never know—

cannot meet the agencies’ burden of demonstrating 

adequacy “beyond material doubt.” While an agency is not 

required “to account for documents which the requester has 

in some way identified if it has made a diligent search for 

those documents in the places in which they might be 

expected to be found,” Lahr v. Nat’l Safety Bd., 569 F.3d 

964, 987 (9th Cir. 2009) (quoting Miller, 779 F.3d at 1385), 

in this case the agencies made no representation as to the 

diligence of their search, instead seeking to avoid the matter 

by relying on their decision to redact. This circular approach 

falls short of the agencies’ burden.
14 TRANSGENDER LAW CENTER V. ICE

In light of the new leads and indications of overlooked 

material, the agencies have not met their burden of 

demonstrating adequacy beyond material doubt. We 

therefore reverse the district court’s grant of summary 

judgment and remand this matter to the district court to direct 

the agencies to properly comply with TLC’s FOIA requests. 

In so doing, the agencies should consider, in particular, the 

leads provided by TLC, including the 48 custodian email 

accounts, as well as TLC’s query regarding any records 

relating to the Civil Rights Office’s visit to the Cibola 

County Correctional Center as part of its investigation into 

Hernandez’s death (including any emails, calendar 

invitations, other logistical records, or any factual findings 

as a result of the investigation).

II. SUFFICIENCY OF THE AGENCIES’ VAUGHN INDICES

A Vaughn index is a submission that “identif[ies] the 

documents withheld, the FOIA exemptions claimed, and a 

particularized explanation of why each document falls 

within the claimed exemption.” Lahr, 569 F.3d at 989 

(internal citation omitted). Such an index must “describe the 

justifications for nondisclosure with reasonably specific 

detail, demonstrate that the information withheld logically 

falls within the claimed exemptions, and show that the 

justifications are not controverted by contrary evidence in 

the record or by evidence of [agency] bad faith.” Hunt v. 

CIA, 981 F.2d 1116, 1119 (9th Cir. 1992). “Specificity is 

the defining requirement of the Vaughn index.” Wiener v. 

FBI, 943 F.2d 972, 979 (9th Cir. 1991); see also Hamdan, 

797 F.3d at 773 (agency must be “as specific as possible”). 

For this reason, the agency “may not respond with 

boilerplate or conclusory statements.” Shannahan v. IRS, 

672 F.3d 1142, 1148 (9th Cir. 2012). The agency “bears the 

burden of demonstrating that the exemption properly applies 
TRANSGENDER LAW CENTER V. ICE 15

to the documents.” Yonemoto v. Dep’t of Veterans Affs., 

686 F.3d 681, 692 (9th Cir. 2012), overruled on other 

grounds by Animal Legal Def. Fund, 836 F.3d at 989.

The district court devoted roughly half a page to the 

question of the adequacy of the Vaughn indices, concluding 

simply, “as Defendants point out, the Vaughn indices 

submitted contain all of the elements required by law” 

insofar as they “are specific, explain the exemptions applied, 

and are entitled to a presumption of good faith.” But, as TLC 

appropriately points out, the agencies’ Vaughn indices are 

“riddled with ‘boilerplate or conclusory statements.’” For 

instance, the Civil Rights Office provided copy-and-pasted 

generic descriptions in five of six total entries invoking 

FOIA Exemption 5, failing to explain how the specific 

content of each document individually implicated the 

agency’s deliberative process. Similarly, when the agencies 

invoked FOIA Exemption 7, they provided almost identical 

copy-and-pasted generic descriptions in nearly every 

instance. This high-level, summary approach resulted in an 

unacceptable lack of specificity and tailoring, thus 

undermining TLC’s ability to contest the agencies’ 

withholdings.

While it is not the case that “an agency can never repeat 

language to justify withholding multiple records,” Hamdan, 

797 F.3d at 774, an agency must “disclose[] as much 

information as possible without thwarting the [claimed] 

exemption’s purpose,” Wiener, 943 F.2d at 979. It would be 

a stretch to say that the agencies’ indices did so in this case. 

For example, one Vaughn index states, in part, that the Civil 

Rights Office redacted an email “to protect deliberative 

information contained in [the] email outlining [its] 

investigation.” Such an explanation, omitting even general 

occupation titles for the sender and recipient, undermines 
16 TRANSGENDER LAW CENTER V. ICE

TLC’s ability to understand why the exchange is exempted. 

Once again, the Government has not met its burden of 

specificity.

As we counseled in Wiener, the Government “must bear 

in mind that the purpose of the index is not merely to inform 

the requester of the agency’s conclusion that a particular 

document is exempt from disclosure . . . but to afford the 

requester an opportunity to intelligently advocate release of 

the withheld documents and to afford the court an 

opportunity to intelligently judge the contest.” Id. The 

Government’s Vaughn indices failed to afford TLC or the 

district court such an opportunity and were therefore 

insufficient. We remand to the district court to direct the 

agencies to provide specific, non-conclusory Vaughn 

indices.

III. WITHHOLDINGS AND REDACTIONS UNDER FOIA

EXEMPTIONS 5, 6, AND 7

The agencies withheld and redacted information under 

FOIA Exemptions 5, 6, 7(C), and 7(E). Withholding is 

permissible “only if the agency reasonably foresees that 

disclosure would harm an interest protected by an 

exemption” and only after “consider[ing] whether partial 

disclosure of information is possible” and taking “reasonable 

steps necessary to segregate and release nonexempt 

information.” 5 U.S.C. § 552(a)(8)(A). The Supreme Court 

has “consistently stated that FOIA exemptions are to be 

narrowly construed.” Dep’t of Just. v. Julian, 486 U.S. 1, 8 

(1988). The burden of proving that withheld documents fit 

into the exemptions falls on the agencies. Dep’t of State v. 

Ray, 502 U.S. 164, 173 (1991).

We recognize that the agencies’ broad withholdings 

required the district court to slog through hundreds of pages 
TRANSGENDER LAW CENTER V. ICE 17

of indices containing thousands of invocations. Indeed, the 

following discussion of these exemptions is tedious enough. 

Nonetheless, this is what FOIA requires, and the burden 

should fall on the agencies, not the court, to provide 

sufficient detail for an adequacy review. The agencies failed 

to properly withhold or redact certain documents under each 

claimed exemption.

A. FOIA Exemption 5

Under Exemption 5, the Government need not disclose 

“inter-agency or intra-agency memorandums or letters that 

would not be available by law to a party other than an agency 

in litigation with the agency . . . .” 5 U.S.C. § 552(b)(5). 

This allows agencies to withhold privileged information, 

including documents revealing an agency’s deliberative 

process and confidential attorney-client communications. 

See Dep’t of Interior v. Klamath Water Users Protective 

Ass’n, 532 U.S. 1, 8 (2001). TLC barely raised any 

arguments regarding the invocation of attorney-client 

privilege, so we focus our analysis on the Government’s 

invocation of the deliberative process privilege—namely 

with respect to non-final drafts (including drafts of the 

detainee death review and mortality review), pre-decisional 

internal discussions and emails, and emails regarding nonfinal drafts.

To properly assert this privilege, an agency must show 

that a document is both “(1) ‘predecisional’ or ‘antecedent 

to the adoption of agency policy’ and (2) ‘deliberative,’ 

meaning ‘it must actually be related to the process by which 

policies are formulated.’” Nat’l Wildlife Fed’n v. Forest 

Serv., 861 F.2d 1114, 1117 (9th Cir. 1988) (quoting Jordan 

v. Dep’t of Just., 591 F.2d 753, 774 (D.C. Cir. 1978)); see 

also Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 

777, 786 (2021). A document is “predecisional” if it was 
18 TRANSGENDER LAW CENTER V. ICE

“prepared in order to assist an agency decisionmaker in 

arriving at his decision.” Renegotiation Bd. v. Grumman 

Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975). A 

document is “deliberative” if “disclosure of materials would 

expose an agency’s decision-making process in such a way 

as to discourage candid discussion within the agency and 

thereby undermine the agency’s ability to perform its 

functions.” Assembly of the State of Cal. v. Dep’t of 

Commerce, 968 F.2d 916, 921 (9th Cir. 1992) (quoting 

Dudman Comms. Corp. v. Dep’t of the Air Force, 815 F.2d 

1565, 1568 (D.C. Cir. 1987)).

The district court essentially treated all drafts as 

necessarily covered by the deliberative process privilege. 

But this was error: “simply designating a document as a 

‘draft’ does not automatically make it privileged under the 

deliberative process privilege.” Wilderness Soc’y v. Dep’t 

of Interior, 344 F. Supp. 2d 1, 14 (D.D.C. 2004). Two 

withheld documents illustrate the hazards of allowing the 

Government to effectively exempt all drafts. ICE, for 

example, withheld a draft mortality review, simply stating in 

its Vaughn index that “[t]his Preliminary report . . . contains 

information pertaining to medical care [and] interviews of 

detention facility personnel.” Yet such an explanation 

contains no references to any decision to which the 

document pertains. Likewise, the agencies withheld draft 

press statements without adequately explaining how they 

reveal a deliberative process. Government “deliberations 

regarding how best to address public relations matters or 

possible responses to an inquiry received from an outside 

entity are not the type of policy decisions the privilege is 

intended to protect.” Al Otro Lado, Inc. v. Wolf, No. 3:17-

cv-2366-BAS-KSC, 2020 U.S. Dist. LEXIS 204854, at *12–

13 (S.D. Cal. Nov. 2, 2020) (internal quotation marks and 

citation omitted). In such instances, the Government failed 
TRANSGENDER LAW CENTER V. ICE 19

to meet its burden of demonstrating predecisional status and 

deliberation.

In line with our precedent, we remand to the district court 

to direct the release of the draft mortality review and the draft 

press statements. The district court should also reconsider 

the other assertions of deliberative process privilege.

B. FOIA Exemption 6

Exemption 6 applies to “personnel and medical files and 

similar files the disclosure of which would constitute a 

clearly unwarranted invasion of personal privacy.” 5 U.S.C. 

§ 552(b)(6). The phrase “‘similar files’ has a ‘broad, rather 

than a narrow meaning.’” Forest Serv. Emps. for Env’t 

Ethics v. Forest Serv., 524 F.3d 1021, 1024 (9th Cir. 2008). 

“Our cases establish a two-step test for balancing individual 

privacy rights against the public’s right of access” under 

Exemption 6, which begins with a threshold evaluation of 

whether the personal privacy interest at stake “is nontrivial.” 

See Cameranesi v. Dep’t of Def., 856 F.3d 626, 637 (9th Cir. 

2017). “[G]overnment records containing information that 

applies to particular individuals satisfy the threshold test of 

Exemption 6.” Forest Serv. Emps., 524 F.3d at 1024.

The agencies invoked Exemption 6 in thousands of 

instances. TLC objects specifically to the use of Exemption 

6 to shield email domains (for example, @ice.dhs.gov). The 

district court held that Exemption 6 allowed ICE and the 

Civil Rights Office to properly withhold email domains as 

“similar files,” because they “relate to a particular person.” 

Yet email domains are not specific to particular 

individuals—email domains are shared by all employees 

within a given DHS component—so they do not satisfy the 

threshold test, and thus cannot be withheld per Exemption 6. 

Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 n.4 
20 TRANSGENDER LAW CENTER V. ICE

(1982) (“Information unrelated to any particular person 

presumably would not satisfy the threshold test.”).

Email domains reveal which government agencies and 

agency components were involved in decisions and 

communications regarding Hernandez and her death. Since 

“domains normally indicate what government agency 

employs the individual email address holder,” their release 

would help TLC understand “which agencies and 

departments are involved in making different types of 

decisions.” Bloche v. Dep’t of Def., 370 F. Supp. 3d 40, 59 

(D.D.C. 2019). This disclosure can be done without any 

identification of individuals. Accordingly, the district court 

erred in permitting the agencies to withhold email domains 

under Exemption 6. We remand to the district court to direct 

the agencies to release the requested documents with the 

email domains unredacted.

C. FOIA Exemption 7(C)

For similar reasons, the district court erred in permitting 

the agencies to withhold email domains under Exemption 

7(C). See Yonemoto, 686 F.3d at 693 n.7 (noting that it is 

appropriate to consider Exemptions 6 and 7(C) together). 

Exemption 7(C) allows agencies to withhold “records or 

information compiled for law enforcement purposes, but 

only to the extent that the[ir] production . . . could 

reasonably be expected to constitute an unwarranted 

invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). As 

with Exemption 6, the agencies improperly redacted email 

domains by relying on Exemption 7(C). We remand to the 

district court to direct the release of the email domains.
TRANSGENDER LAW CENTER V. ICE 21

D. FOIA Exemption 7(E)

Exemption 7(E) allows agencies to withhold “records or 

information compiled for law enforcement purposes, but 

only to the extent that the production of such law 

enforcement records or information . . . would disclose 

techniques and procedures for law enforcement 

investigations or prosecutions, or would disclose guidelines

for law enforcement investigations or prosecutions if such 

disclosure could reasonably be expected to risk 

circumvention of the law.” 5 U.S.C. § 552(b)(7)(E) 

(emphasis added). The requirement that the Government 

show that disclosure “could reasonably be expected to risk

circumvention of the law” applies only to guidelines for law 

enforcement investigations or prosecutions, not to 

techniques and procedures. Hamdan, 797 F.3d at 778. 

“‘[G]uidelines’ refer to how the agency prioritizes its 

investigative resources, while ‘techniques and procedures’ 

cover ‘how law enforcement officials go about investigating 

a crime.’” Anguiano v. ICE, 356 F. Supp. 3d 917, 923–24 

(N.D. Cal. 2018).

The agencies broadly invoked Exemption 7(E), claiming 

it protected from disclosure numerous codes, information 

“concerning the number of guards used at detention 

facilities, location of cameras, as well as the staffing and 

routes used to transport detainees,” and information 

concerning technology “used for law enforcement 

purposes.” The district court concluded that “the 

information that ICE and [the Civil Rights Office] withheld 

. . . would disclose law enforcement techniques and 

procedures if released . . . . As such, this information is 

categorically exempted under [Exemption 7(E)].”

Such a finding is overbroad. The district court should 

have analyzed whether the withheld documents were, in fact, 
22 TRANSGENDER LAW CENTER V. ICE

techniques and procedures, and not guidelines (which for 

exemption require additional information to show that 

disclosure “could reasonably be expected to risk 

circumvention of the law”). For instance, ICE withheld the 

“factors and circumstances taken into consideration by ICE 

personnel when detaining and transporting detainees.” 

Neither ICE nor the district court explained why these 

documents were “techniques and procedures” rather than 

“guidelines.” Absent an analysis, such “factors and 

considerations” could plausibly be construed as reflecting 

“how the agency prioritizes its investigative resources” (i.e., 

guidelines), rather than “how law enforcement officials go 

about investigating a crime” (i.e., techniques and 

procedures). Id. at 924. In this situation, a categorical 

exclusion cannot be sustained as we have no basis to review 

whether “techniques and procedures” were at issue.2

We remand this matter to the district court to direct the 

agencies to (1) clarify whether each document withheld is a 

“technique and procedure,” rather than a guideline, and then 

proceed accordingly, and (2) account for the revelations 

from the CoreCivic production (which indicate that the 

2 Our conclusion is strengthened by evidence that the Government 

withheld information under this exemption in an overbroad manner. For 

instance, ICE redacted a portion of Hernandez’s credible fear interview 

under Exemption 7(E), but when TLC received an unredacted version 

from the CoreCivic production, the redacted text read as follows: “I left 

because my life was threatened by the Maras gang. A group of Maras 

raped and tried to kill me I was afraid for my life and left Honduras.” 

This statement from Hernandez could not possibly fall under the 

category of techniques, procedures, or guidelines. Such a redaction 

suggests that the agencies may have invoked Exemption 7(E) in an effort 

to shield prejudicial information. See Pulliam v. EPA, 292 F. Supp. 3d 

255, 260 (D.D.C. 2018).
TRANSGENDER LAW CENTER V. ICE 23

agencies were overbroad in their reliance on Exemption 

7(E)).

IV. SEGREGABILITY

FOIA provides that any “reasonably segregable portion 

of a record shall be provided to any person requesting such 

record after deletion of the portions which are exempt under 

this subsection.” 5 U.S.C. § 552(b). Glossing this provision, 

we have repeatedly held that “[i]t is reversible error for the 

district court to simply approve the withholding of an entire 

document without entering a finding on segregability, or the 

lack thereof, with respect to that document.” Hamdan, 

797 F.3d at 779 (alteration in original) (internal quotation 

marks omitted) (quoting Wiener, 943 F.2d at 988). Indeed, 

a district court errs “by failing to make specific findings on 

the issue of segregability.” Wiener, 943 F.2d at 988 

(emphasis added). This requirement dovetails with the 

principle that a district court errs when it grants summary 

judgment where the agency “did not provide [plaintiff] or the 

district court with specific enough information to determine 

whether the [agency] had properly segregated and disclosed 

factual portions of those documents that the [agency] 

claimed were exempt under the deliberative process 

privilege.” Pac. Fisheries, Inc. v. United States, 539 F.3d 

1143, 1149 (9th Cir. 2008).

The district court held only that, with respect to records 

withheld as deliberative process privilege (under Exemption 

5), “DPP material is generally not segregable from the facts 

it contains,” and, therefore, TLC’s arguments regarding the 

segregability of materials withheld as DPP “are incorrect.” 

The district court failed to examine, with any specificity, the 

Government’s broad redactions.
24 TRANSGENDER LAW CENTER V. ICE

For instance, the agencies redacted the draft detainee 

death review in its entirety, despite the fact that the final 

detainee death review (which was released) included 

considerable factual information. The agencies also 

redacted the draft mortality review in its entirety—justifying 

this on the grounds that the draft contained “information 

pertaining to medical care [and] interviews of detention 

facility personnel”—despite the likelihood of such a review 

also containing factual information. The agencies 

additionally redacted broad swaths of emails. The agencies 

did not make any representations as to the segregability of 

factual information within these documents, although it was 

their burden “to establish that all reasonably segregable 

portions of a document have been segregated and disclosed.” 

Id. at 1148. This evidentiary vacuum makes it difficult for 

the district court, which ultimately did not make any findings 

regarding the segregability of factual information potentially 

contained within these redacted materials.

The deliberative process privilege does not cover 

“[p]urely factual material that does not reflect deliberative 

processes . . . .” FTC v. Warner Comms., Inc., 742 F.2d 

1156, 1161 (9th Cir. 1984) (citing EPA v. Mink, 410 U.S. 73, 

87–89 (1973)). Only when the “factual material . . . is so 

interwoven with the deliberative material that it is not 

severable” is an agency relieved of the burden to segregate 

and disclose non-privileged factual information. Id. (citing 

Binion v. Dep’t of Just., 695 F.2d 1189, 1193 (9th Cir. 

1983)). The district court cited no authority to justify its 

assertion that “DPP material is generally not segregable from 

the facts it contains.” Such a conclusory statement cannot 

excuse the agencies’ failure to provide specific information 

with respect to segregability, nor does it satisfy the district 

court’s obligation to make findings on the issue of 

segregability. See Hamdan, 797 F.3d at 779.
TRANSGENDER LAW CENTER V. ICE 25

We recognize that our caselaw, which demands a careful 

document-by-document review, may place considerable 

strain on already overburdened district courts. That is 

precisely why we require the Government to come forward 

with clear, precise, and easily reviewable explanations for 

why information is not segregable. The Government’s 

failure to do so here requires that we remand and order, as 

we did in Pacific Fisheries:

On remand the district court must make 

specific findings as to whether factual 

information has been properly segregated and 

disclosed in all documents or portions of 

documents that the [agencies] claim[] are 

exempt from disclosure under the

deliberative process privilege . . . . In order to 

assist the district court, the [agencies] should 

submit affidavits describing in more detail 

the withheld portions of these documents so 

that both the district court and [plaintiffs] can 

evaluate the government’s claims of 

exemption. If the government is unable to 

provide sufficiently specific affidavits, the 

district court should review the documents in 

camera to determine whether the factual 

portions were properly segregated and 

disclosed.

539 F.3d at 1150 (citations omitted). The district court 

should consider, in particular, whether non-segregable 

information might be found in: material withheld under the 

deliberative process privilege; the draft detainee death 

review; and the redacted emails.
26 TRANSGENDER LAW CENTER V. ICE

V. DUPLICATIVE AND NON-RESPONSIVE DESIGNATIONS

TLC alleges that the district court “erred” by failing to 

make a finding on the Government’s withholding of certain 

documents as “non-responsive” or “duplicative.” Because 

no binding precedent or statute points to such an obligation, 

the district court did not err in neglecting to make such a 

finding. Given the multiple failures noted here, however, the 

district court should take whatever steps are practicable to 

ensure that these designations are applied properly.

VI.EXPEDITED PROCESSING REQUESTS

At the trial stage, TLC argued that the agencies 

unlawfully denied two expedited processing requests it 

submitted in January and August of 2020. TLC pointed to 

6 C.F.R. § 5.5(e)(2), which provides that a request for 

expedited processing of a FOIA request may be made at any 

time. The agencies countered that the January and August 

2020 requests were not merely expedited processing 

requests for Plaintiffs’ existing FOIA requests, but were new 

FOIA requests seeking additional information, among other 

arguments. The district court held that it “need not decide 

whether the expedited requests are related to the requests at 

issue in this lawsuit or are new requests,” because the 

agencies had “adequately complied” with TLC’s initial 

FOIA requests, and therefore “the expedited processing 

requests themselves are now moot.”

Because we are remanding due to the inadequacy of the 

agencies’ compliance, we vacate the mootness 
TRANSGENDER LAW CENTER V. ICE 27

determination, which should be reconsidered by the district 

court.3

REVERSED, VACATED, and REMANDED.

3 Because TLC will have “substantially prevailed” within the 

meaning of the FOIA statute, it will be eligible to have “reasonable 

attorney fees and other litigation costs” assessed against the United 

States. 5 U.S.C. § 552(a)(4)(E). We remand to the district court to make 

a determination as to fees and costs. Schoenberg v. FBI, 2 F.4th 1270, 

1275–76 (9th Cir. 2021).