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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

AMERICAN IMMIGRATION COUNCIL,

Plaintiff,

v. Civil Action No. 12-856 (JEB)

UNITED STATES DEPARTMENT OF 

HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff American Immigration Council brought this action under the Freedom of 

Information Act seeking records on immigrants’ access to legal counsel during their interactions 

with U.S. Immigration and Customs Enforcement authorities. Defendant ICE (a component of 

the Department of Homeland Security, the second Defendant) eventually produced nearly 8,000 

pages of responsive records, withholding and partially redacting hundreds of pages. In its suit, 

Plaintiff challenges the sufficiency of Defendants’ search for responsive records, as well as the 

propriety of many of their withholdings. Arguing they have complied with their obligations, 

Defendants now move for summary judgment on both issues. As to the first, the Court 

concludes that an issue of material fact exists as to whether Defendants conducted a sufficiently 

exhaustive search to satisfy FOIA. Having also reviewed Defendants’ justifications for their 

various withholdings and having examined their redactions in camera, the Court further finds 

that Defendants have not provided sufficient information for it to determine whether any of the

withholdings are proper. Denial of Defendants’ Motion for Summary Judgment thus results.
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I. Background

In March 2011, the American Immigration Council (AIC) submitted the following FOIA 

request concerning individuals’ access to legal counsel during their interactions with U.S. 

Immigration and Customs Enforcement authorities:

[A]ny and all records which have been prepared, received, 

transmitted, collected and/or maintained by the U.S. Department of 

Homeland Security and/or U.S. Immigration and Customs 

Enforcement (ICE), whether issued or maintained by ICE 

Headquarters offices (including but not limited to the Office of the 

Assistant Secretary (OAS), Enforcement and Removal Operations 

(ERO), Homeland Security Investigations (HIS) [sic], 

Management and Administration, Office of the Principal Legal 

Advisor (OPLA), and the Office of Detention Policy and Planning 

(ODPP), including any divisions, subdivisions or sections therein); 

ICE field offices, including any divisions, subdivisions or sections 

therein; local Offices of Chief Counsel; and/or any other ICE 

organizational structure; and which relate or refer in any way to 

any of the following:

• Attorneys’ ability to be present during their clients’ 

interactions with ICE;

• What role attorneys may play during their clients’ 

interactions with ICE;

• Attorney conduct during interactions with ICE on behalf of 

their clients;

• Attorney appearances at ICE offices or other facilities.

Compl., Exh. A (Letter from Emily Creighton, AIC, to FOIA Office, U.S. Immigrations and 

Customs Enforcement (March 14, 2011)) at 1 (footnote omitted). The request “include[d], but 

[was] not limited to” thirteen specific types of records. Id. at 1-3.

After more than a year without receiving any records and three unsuccessful 

administrative appeals of actual and constructive denials of its request, AIC concluded that it had 

exhausted its administrative remedies and filed suit in this Court. See Compl., ¶¶ 15-24; see also

5 U.S.C. § 552(a)(6)(A)-(C) (under normal circumstances, agency must make an initial 

determination within 20 days, with another 20 days allotted for administrative appeal; where the 
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agency exceeds its time limits, requester will be deemed to have exhausted administrative 

remedies).

Two and a half months after AIC filed its Complaint with this Court, ICE processed 

1,084 pages of responsive documents and produced them. See Joint Motion to Stay These 

Proceedings, ¶ 4. Shortly thereafter, ICE “identified an additional 6,000 or so pages of 

documents” that it deemed potentially responsive to AIC’s request. Id., ¶ 5. The parties jointly 

requested a brief stay of the proceedings to allow ICE to review and produce additional 

documents on a rolling basis. Id., ¶¶ 6-7. The Court granted this request on August 20, 2012. 

ICE then processed 6,906 pages of further records in five rolling productions, 

withholding portions of the records pursuant to various FOIA exemptions. See Mot., Attach. 1

(Defendant Statement of Material Facts (SMF)), ¶¶ 20-21; Opp., Attach. 1 (Plaintiff Response to 

Def. SMF), ¶¶ 20-21. ICE also provided AIC with a summary Vaughn Index for the purpose of 

identifying information in its withholdings. See Def. SMF, ¶ 23. 

On January 9, 2013, the parties entered into a joint stipulation acknowledging AIC’s 

receipt and review of the 6,906 additional pages of documents, many of which ICE had redacted 

in whole or in part pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). See Mot., Exh. 2 (Joint 

Stipulation), ¶¶ 1-2. AIC agreed that it would not challenge ICE’s whole or partial redactions for 

the following page ranges: 0216-0221, 0242-0432, 0449-0518, 0550-0581, 0584-0620, 0658-

0724, 0748-0781, 0803-0816, 0821-0822, 0830-0840, 0845-0847, 0855, 0859, 0890, 0899, 0918-

0919, 0924, 0934, 0948-0962, 0967-0984, and 1085-6906. See id., ¶¶ 2-3.

On January 25, 2013, Defendants filed a Motion for Summary Judgment, claiming that 

they had conducted a reasonable search in response to Plaintiff’s request, produced all responsive 

documents, and properly withheld certain records pursuant to various FOIA exemptions. See
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Mot. at 7-21. AIC contests the Motion, arguing that Defendants failed to demonstrate that their 

search was adequate, that the descriptions of their withholdings are insufficient as a whole, and 

that they improperly withheld various documents. See Opp. at 5-33.

On April 25, this Court ordered Defendants to produce the remaining disputed documents 

for in camera review. Thereafter, Defendants produced the documents, which number nearly

600 pages. The Court has since reviewed the redactions along with Defendants’ various 

justifications.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. 

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the 

substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 

895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 

U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely 

disputed must support the assertion” by “citing to particular parts of materials in the record” or 

“showing that the materials cited do not establish the absence or presence of a genuine dispute, 

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 

56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of 

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. 

See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a 
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court may grant summary judgment based solely on information provided in an agency’s 

affidavits or declarations when they “describe the justifications for nondisclosure with 

reasonably specific detail, demonstrate that the information withheld logically falls within the 

claimed exemption, and are not controverted by either contrary evidence in the record nor by 

evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)

(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, 

which cannot be rebutted by purely speculative claims about the existence and discoverability of 

other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal 

quotation marks omitted). “Unlike the review of other agency action that must be upheld if 

supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the 

burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter 

de novo.’” U.S. Dep’t of Justice v. Reporters Com. for the Freedom of the Press, 489 U.S. 749, 

755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

III. Analysis

Plaintiff contends that Defendants erred in two essential areas. First, AIC claims that ICE 

failed to conduct an adequate search for responsive records. See Opp. at 7-16. Second, AIC 

asserts that ICE improperly withheld multiple records pursuant to several FOIA exemptions. See

id. at 16-35. Given that ICE has demonstrated neither the adequacy of its search nor the 

propriety of its withholdings, the Court cannot grant Defendants’ Motion on either ground. 

A. Adequacy of Search

FOIA requires government agencies to describe their searches in sufficient detail for a 

court to determine whether the search was sufficiently exhaustive to satisfy the Act. Nation 

Magazine, Washington Bureau v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995); 
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Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). To describe its search in this 

case, ICE relies on two declarations from its Deputy FOIA Officer, Ryan Law. See Mot., Exh. 1 

(Declaration of Ryan Law); Reply, Exh. 1 (Supplemental Declaration of Ryan Law). Those 

declarations, ICE contends, demonstrate that the search it undertook was reasonable. They

describe, inter alia, the ICE departments searched, the employees who conducted the searches, 

the “search terms utilized,” and “the databases, physical spaces, and other computer files 

searched.” Reply at 7-8.

Plaintiff raises several objections to ICE’s search, which it argues preclude summary 

judgment on this issue. These objections fall into three categories: First, that ICE failed to 

explain why it excluded certain departments and local field offices from its search, see Opp. at 

10-12, Sur-Reply at 5; second, that ICE has not described its search in sufficient detail to allow 

this Court to assess its reasonableness, see Opp. at 5-12; Sur-Reply at 6-7; and, third, that 

countervailing evidence indicates the actual search ICE conducted was not adequate. See Reply 

at 12-16; Sur-Reply at 7.

As the Court ultimately finds the first two objections persuasive, it concludes that an 

issue of material fact remains as to whether the agency’s search was adequate.

1. Selection of Offices & Files to Search

Plaintiff first argues that Defendants have failed to explain why they have not searched

certain offices, sub-offices, and field offices that are likely to contain responsive records. It

additionally complains that, within those departments ICE did search, ICE improperly omitted 

filing systems that are likely to contain responsive records. 

As a first step, “[u]pon receiving Plaintiff’s FOIA request . . . the ICE FOIA Office 

reviewed the request and determined that based on the subject matter of the FOIA request that 
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the following offices and divisions as likely possessing records responsive [sic].” Law Decl.,

¶ 20. Indeed, this appears to be the normal practice of the agency: “When the ICE FOIA Office 

receives a FOIA request, its first step is to identify which program offices within ICE are most 

likely to possess records responsive to that request and to initiate searches within those program 

offices.” Id., ¶ 7. Similarly, in deciding which filing systems within a department to search, the 

agency explains: “These terms and locations were used as they were determined by the person 

familiar with the records within [an ICE department] to be relevant to the request and reasonably 

calculated to uncover relevant documents.” Suppl. Law Decl., ¶ 37; see also id. ¶¶ 27, 43.

In order for such a methodology to be sufficient, ICE would, at a minimum, have to aver 

that it has searched all files likely to contain relevant documents. Agencies regularly make such 

attestations when they use similar methods of selecting which departments and files to search. 

For example, in Brehm v. Dep’t of Def., 593 F. Supp. 2d 49 (D.D.C. 2009), the government 

agency selected two filing systems that it determined were “likely to contain responsive records.” 

Id. at 50. The defendant, however, additionally averred that “it is unlikely that other CIA 

directorates would possess records responsive to Plaintiff’s request.” Id.; see also Nation 

Magazine, 71 F.3d at 891 (agency attested that it had “made a comprehensive search through all 

of its records systems where [records] responsive to the Plaintiffs request could conceivable [sic] 

be maintained and failed to locate any [responsive] records”).

Where the government has not made such an attestation, courts have typically found that 

an issue of material fact exists as to the adequacy of the search. In Jefferson v. Bureau of 

Prisons, No. 05-848, 2006 WL 3208666 (D.D.C. Nov. 7, 2006), for example, the court found the 

FBI’s search inadequate because its declaration did not “aver that the FBI searched all files likely 

to contain responsive records.” Id. at *6. Likewise, in Bonaparte v. U.S. Dept. of Justice, 531 F. 
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Supp. 2d 118 (D.D.C. 2008), the court found the search inadequate in part because the 

Defendants had not averred that “all files likely to contain responsive materials . . . were 

searched.” Id. at 122. And in Maydak v. U.S. Dep’t of Justice, 362 F. Supp. 2d 316 (D.D.C. 

2005), the court lamented that “no one avers, and the record does not otherwise permit the 

inference that all files likely to contain responsive records were searched.” Id. at 326.

Here, similarly, Defendants have not indicated that all those offices and records systems 

likely to contain responsive records have been searched. ICE has only stated that it identified 

certain offices as “most likely to possess records responsive to [Plaintiff’s] request.” Law Decl., 

¶ 7; see also id., ¶ 20. The D.C. Circuit rejected just such an attestation in Oglesby, 920 F.2d at 

68. There, the defendant selected the departments and filing systems it searched in much the 

same manner that ICE did in this case: “Based upon the information contained in [the plaintiff’s] 

letter, and consistent with customary practice and established procedure, a search was initiated of 

the Department record system most likely to contain the information which had been 

requested . . . namely, the Central Records.” Id. The plaintiff complained that in response to his 

FOIA request, “the agency only searched the record system ‘most likely’ to contain the requested 

information.” Id. The D.C. Circuit held that, while an agency need not search every one of its 

record systems, a “reasonably detailed affidavit . . . averring that all files likely to contain 

responsive materials . . . were searched, is necessary to afford a FOIA requester an opportunity to 

challenge the adequacy of the search and to allow the district court to determine if the search was 

adequate in order to grant summary judgment.” Id. Such an assurance is necessary because

the agency cannot limit its search to only one record system if 

there are others that are likely to turn up the information requested. 

It is not clear from [the government’s] affidavit that the Central 

Records system is the only possible place that responsive records 

are likely to be located. At the very least, [the government] was 
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required to explain in its affidavit that no other record system was 

likely to produce responsive documents.

Id. (emphasis original).

While this averment may seem a technical requirement, the facts of this case demonstrate 

its importance. Plaintiff argues that certain offices, sub-offices, and filing systems should have 

been searched, see Opp. at 9, Sur-Reply at 5, but the Court cannot begin to analyze such a 

contention until it knows ICE’s position on whether any of those locations have potentially 

responsive documents.

2. Description of Search

For those departments and files that the agency did search, ICE has similarly failed to 

carry its burden. The government must describe a search with sufficient detail that the reviewing 

court can determine whether the search was reasonable. See Nation Magazine, 71 F.3d at 890 

(“To show reasonableness at the summary judgment phase, an agency must set forth sufficient 

information in its affidavits for a court to determine if the search was adequate.”); Oglesby, 920 

F.2d at 68 (“A reasonably detailed affidavit, setting forth the search terms and the type of search 

performed ... is necessary to afford a FOIA requester an opportunity to challenge the adequacy 

of the search and to allow the district court to determine if the search was adequate in order to 

grant summary judgment.”).

Here, Defendants’ description is not sufficiently detailed. Law’s supplemental 

declaration describes searches of particular databases without explaining what those databases 

are and the documents they contain. For example, it details a search of the “ERO Resource 

Library,” but does not explain what kinds of documents that database includes. See Suppl. Law 

Decl., ¶ 42. Elsewhere, it refers to the “ICE OPLA District Court Litigation Division Litigation 

Database,” without explaining what records the database contains. Id., ¶ 16. At one point, the 
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declaration simply refers to “a database search” without providing even the name of the 

database. Id., ¶ 20. For OPLA, ERO, and ODPP, the supplemental declaration describes 

searches of network “Shared Drive[s]” without explaining what employees, departments, or field 

offices have access to those drives. See id., ¶¶ 11, 30, 36, 40. The explanation dedicated to the 

search of ODPP refers simply to a “computer search of the ‘Documents’ folder,” but does not 

explain where the folder was located or who had access to it. Id., ¶ 41. Paragraph 34 refers to a 

“desktop/laptop computer search,” but does not explain whose computers were actually 

searched. Id. at 34.

At several points, the supplemental declaration describes searches of the “Email Outlook

program,” but does not explain what is included in this “program.” See id., ¶¶ 13, 21, 26, 31. In 

other words, the declaration does not make clear whether these searches encompassed all emails 

from all employees within a particular division, or whether they included only certain employees 

thought to have relevant information. In addition, the original declaration describes the general 

system for archived emails, see Law Decl., ¶ 15 (“Individual archives of emails are searched by 

the individual employees where those employees have identified individual archives containing 

potentially responsive documents.”), but the searches of the “Email Outlook program” appear to 

be distinct from the searches of “archived emails” that Law describes in his supplemental 

declaration. Compare, e.g., Suppl. Law Decl., ¶ 13 (describing an “‘instant search’ of the Email 

Outlook program”), with id.,¶ 17 (referring to “a search of the archived emails of the individual 

conducting the search”).

In the same way, Defendants failed to adequately describe the searches of three databases 

that apparently returned responsive records. Defendants retrieved records “responsive to 

Plaintiff’s FOIA request” from three of its recordkeeping systems: the “ICE External 
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Investigations Records,” the “Immigration and Enforcement Operational Records,” and the 

“Alien Medical Records.” Law Decl., ¶ 16. While Law’s first declaration does describe the 

nature of those records systems in some detail, see id.,¶ 16(a)-(c), it does not discuss the searches 

performed on those record systems. The supplemental declaration, however, which ICE

ostensibly provided to address this and other omissions, see Reply at 7, makes no reference to 

any of the three records systems mentioned in Law’s first declaration. 

Without a more detailed description of the systems that the agency searched, a question 

of material fact exists as to whether the search was adequate. Additionally, a more detailed 

description of the search will help the Court evaluate some of Plaintiff’s more specific criticisms. 

For instance, Plaintiff points out that the search terms the agency employed seem inconsistent 

and incomplete. See Sur-Reply at 6. The Court will not venture an opinion on this claim 

without a better understanding of what files were being searched. It does note, however, that the 

relevance of some of these search terms, such as “Jena,” “SPC,” and RA Memos,” is not 

immediately apparent. See Suppl. Law Decl., ¶ 30. More explanation will prove of future 

assistance to the Court. 

3. Countervailing Evidence

Plaintiff additionally points to “countervailing evidence” that, it argues, indicates that 

ICE did not perform an adequate search. See Opp. at 12-16. Although, as just discussed, the 

Court does not have enough information to evaluate the adequacy of the overall search, it does 

not agree that the countervailing evidence Plaintiff has identified, on its own, demonstrates that 

the search was inadequate.

Plaintiff relies on two types of countervailing evidence. First, it identifies documents that 

AIC knows existed at one time but that ICE did not provide in response to Plaintiff’s FOIA 
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request. For example, ICE has held several meetings with immigration advocacy groups – e.g., 

the American Immigration Lawyers Association – concerning the role of counsel. See Opp.,

Attach. 6 (Declaration of Robert Deasy), ¶ 3. After each meeting, the Lawyers Association sent 

“meeting minutes” to ICE, to which ICE responded in writing. See id., ¶ 3. In several of these 

meeting minutes, ICE responded to questions about access to counsel. Plaintiffs complain, 

though, that in response to their FOIA request, Defendant turned over only “limited 

correspondence relating to such meetings.” Opp. at 12. Similarly, Plaintiff has provided 

affidavits from several immigration rights advocates attesting to written correspondence they 

have conducted with ICE officials regarding access to attorneys, which correspondence was not 

included in the materials ICE provided to Plaintiff. See id. at 12-13.

Second, Plaintiff contends that some of the documents that ICE did provide contain 

references to other relevant documents that the agency did not turn over. Plaintiff cites examples 

of records referring to, for example, “talking points,” “PowerPoint” presentations, or “policies.” 

Several emails also refer to “documents” and “memos.” Id. at 14. An “Operation Plan” that 

Defendants disclosed refers to four attachments, but the attachments are not included. Id. at 14.

In general, identifying a handful of documents that the agency failed to uncover does not, 

in itself, demonstrate that the search was inadequate. See Boyd v. Criminal Div. of U.S. Dep’t of 

Justice, 475 F.3d 381, 391 (D.C. Cir. 2007) (“[T]he fact that a particular document was not found 

does not demonstrate the inadequacy of a search.”); Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 

2004) (“the agency’s failure to turn up a particular document ... does not undermine the 

determination that the agency conducted an adequate search for the requested records”). Nor is 

the government required to examine every document that is cross-referenced by the records that 

have been reviewed. In Steinberg v. U.S. Dep’t of Justice, 23 F.3d 548 (D.C. Cir. 1994), the 
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plaintiff complained that the government had not examined six files that were mentioned in 

several disclosed documents. Id. at 552. The D.C. Circuit held that FOIA does not require 

agencies to track down every cross-referenced record in the documents it examines: “[M]ere 

reference to other files does not establish the existence of documents that are relevant to 

appellant’s FOIA request.” Id.

The existence of particular undisclosed documents is not conclusive because any 

individual document may have been lost, destroyed, or not retained in the first place. See

Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (The “adequacy of 

a FOIA search is generally determined not by the fruits of the search, but by the appropriateness 

of the methods used to carry out the search. After all, particular documents may have been 

accidentally lost or destroyed, or a reasonable and thorough search may have missed them.”) 

(internal citations omitted); see also Porter v. CIA, 778 F. Supp. 2d 60, 69 (D.D.C. 2011).

True, in some instances, courts have found that the government’s failure to hand over

specific documents indicates that the search was inadequate. These cases, however, tend to 

involve instances where the existence of a particular document indicates that the agency failed to 

search a particular category of files or a particular department’s records. For instance, in Wolf v. 

CIA, 357 F. Supp. 2d 112 (D.D.C. 2004), aff’d in part, rev’d in part on other grounds, 473 F.3d 

370 (D.C. Cir. 2007), the plaintiff sought all documentation in the FBI’s possession regarding the 

activities of a particular individual. Id. at 114. The plaintiff independently produced an internal 

FBI memorandum indicating that the individual’s case file was being closed and that his 

subsequent activities would be reported in a file called “Political Situation in Colombia—Foreign 

Political Matter.” Id. at 119. The court agreed that the FBI should have searched this “Political 

Situation” file and that the agency’s failure to do so rendered summary judgment improper. Id. 
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Likewise, in Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (D.C. Cir. 1998), the files that the 

FBI provided in response to plaintiff’s FOIA request alluded to records contained in two 

additional record systems, an electronic surveillance index, and “tickler” files. Id. at 27. The 

court thus held that the FBI should have searched those additional record systems. Id. at 28; see 

also Iturralde, 315 F.3d at 315 (failure to disclose a particular document only indicates an 

inadequate search under certain circumstances – e.g., the government “failed to search particular 

offices or files where the document might well have been found”; “failed or refused to interview 

government officials for whom there was strong evidence that they might have been helpful in 

finding the missing documents”; or “ignored indications in documents found in its initial search 

that there were additional responsive documents elsewhere”) (citations omitted).

Unlike the documents discussed in Wolf and Campbell, the records that Plaintiff refers to 

here do not demonstrate that the search was inadequate. Plaintiff has not provided evidence to 

demonstrate that ICE saved the meeting minutes that immigrant rights advocates sent to them or 

that ICE personnel retained their correspondence with those advocates. The evidence does not 

reveal a particular category of files or a particular department whose records the agency failed to 

search. Plaintiff’s suggestion that records of these correspondences exist is thus largely 

speculative.

In summary, the Court holds that issues of material fact exist as to the adequacy of ICE’s 

search. The agency must, in the future, aver that all departments and files likely to contain 

responsive records were searched and must describe its search procedures in sufficient detail for 

the Court to determine whether the search was reasonable. Summary judgment on this issue will 

be denied.
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B. Withholdings Under Various FOIA Exemptions

FOIA provides that “each agency, upon any request for records which (i) reasonably 

describes such records and (ii) is made in accordance with published rules . . . , shall make the 

records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Nine categories of 

information are exempt from FOIA’s broad rules of disclosure. 5 U.S.C. § 552(b)(1)-(9). These 

exemptions are to be narrowly construed, see Dep’t of Air Force v. Rose, 425 U.S. 352, 361 

(1976), and the reviewing court must bear in mind that FOIA mandates a “strong presumption in 

favor of disclosure.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991); Nat’l Ass’n of Home 

Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). This Court, accordingly, can compel the 

release of any records that do not satisfy the requirements of at least one exemption. See U.S. 

Dep’t of Justice v. Reporters Com. for Freedom of the Press, 489 U.S. 749, 755 (1989).

Plaintiff argues that ICE’s withholdings are deficient in four respects. First, AIC 

maintains that ICE’s Vaughn Index and other explanations of its withholdings are insufficient as 

a whole, and that summary judgment should be rejected on the overall ground that Defendants 

have not carried their evidentiary burden. See Opp. at 19-22. Second, Plaintiff takes issue with 

specific categories of withholdings, arguing that ICE has not thoroughly explained how 

particular FOIA exemptions apply to individual documents. See id. at 22-33. Third, Plaintiff 

contests withholdings and redactions for which no exemptions have been claimed and that have 

been marked as redacted without further explanation. See id. at 21. Fourth and finally, Plaintiff 

asserts that even if ICE has appropriately described its withholdings, it has nevertheless failed to 

release “reasonably segregable portion[s]” of its exempted records. Id. at 33-35. The Court will 

address each of these issues in sequence.
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1. Overall Sufficiency of Documentation and Explanations

FOIA was drafted with the objective of affording the public maximum access to most 

government records. See Vaughn v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). The 

government, as a result, bears the burden of demonstrating that at least one exemption applies.

See id. In order to assist a court in its de novo review of the withholdings and to allow the party 

seeking access to documents to engage in effective advocacy, the government must furnish 

“detailed and specific information demonstrating ‘that material withheld is logically within the 

domain of the exemption claimed.’” Campbell, 164 F.3d at 30 (quoting King v. U.S. Dep’t of 

Justice, 830 F.2d 210, 217 (D.C. Cir. 1987)). This allows for “as full a public record as possible, 

concerning the nature of the documents and the justification for nondisclosure.” Hayden v. Nat’l 

Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1384 (D.C. Cir. 1979). Time and again, courts in 

this Circuit have stressed that the government cannot justify its withholdings on the basis of 

summary statements that merely reiterate legal standards or offer “far-ranging category 

definitions for information.” King, 830 F.2d at 221; see, e.g., Campbell, 164 F.3d at 30 

(emphasizing that an agency’s explanations will not suffice if they “‘are conclusory, merely 

recit[e] statutory standards, or if they are too vague or sweeping’”) (quoting Hayden, 608 F.2d at 

1387). 

While FOIA’s individual exemptions impose their own tailored evidentiary burden, as a 

starting point, the government must meet five overarching requirements for each withholding. 

See King, 830 F.2d at 224. The government must: 

(1) [I]dentify the document, by type and location in the body of 

documents requested; (2) note that [a particular exemption] is 

claimed; (3) describe the document withheld or any redacted 

portion thereof, disclosing as much information as possible without 

thwarting the exemption’s purpose; (4) explain how this material 

falls within one or more of the categories . . . ; and [if the 
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exemption requires a showing of harm] (5) explain how disclosure 

of the material in question would cause the requisite degree of 

harm.

Id.

In circumstances where an in-depth description of a withholding would risk disclosure of 

sensitive information, and particularly where a confidential source might be compromised, the 

government may supplement its explanations with non-public affidavits and other documents for 

in camera review by the court. See Simon v. Dep’t of Justice, 980 F.2d 782, 784 (D.C. Cir. 

1992) (“in camera review . . . is the best way to assure both that the agency is entitled to the 

exemption it claims and that the confidential source is protected”). In camera review, however,

is “not a substitute for the government’s obligation to provide detailed public indexes and 

justifications whenever possible.” Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455, 1463 (D.C. 

Cir. 1984); see also PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 253 (D.C. Cir. 1998) (“[I]n 

camera review is generally disfavored,” and is “not a substitute for the government’s obligation

to justify its withholding in publicly available and debatable documents.”) (internal citations 

omitted). As the D.C. Circuit noted in Lykins, the government’s documentary obligations not 

only enable the reviewing court to make an informed and accurate determination, but they also

allow the adversary system to operate effectively and encourage transparency by “forc[ing] the 

government to analyze carefully any material withheld.” 725 F.2d at 1463. Admittedly, this 

evidentiary burden is likely to create significant costs for government agencies as they respond to 

FOIA requests; however, “[t]he costs must be borne . . . if the congressional policy embodied in 

FOIA is to be well served.” Senate of the Com. of Puerto Rico v. U.S. Dep’t of Justice, 823 F.2d 

574, 587 (D.C. Cir. 1987). 
18

In this case, ICE has fallen well short of meeting its obligations and has instead shifted 

the burden of analyzing nearly 600 pages of withheld documents to the shoulders of this Court. 

More specifically, at the Court’s request, Defendants have submitted the disputed documents for 

in camera review, supplementing them with declarations and briefs that are laden with 

generalized, categorical descriptions of the contents and conclusions that do little more than 

parrot established legal standards. See, e.g., Mot. at 9-20 (broad, categorical descriptions of 

documents using statutory language and legal conclusions); Law Decl., ¶¶ 37-57 (use of 

summary categories without any individual descriptions of documents); Reply at 9-18 (same). 

Defendants have also provided an equally unsatisfactory “summary” Vaughn Index, which they 

claim reflects “customary practice, particularly in cases . . . where a large number of potentially 

responsive documents [are] identified.” Law Decl., ¶ 36. The Index purports to convey all 

necessary detail in only four pages comprising six rows of vague description. See Vaughn Index 

at 1-4 (multiple records assigned to sweeping categories such as “[a]ll documents containing 

commonly withheld techniques and procedures of law enforcement,” or “[e]mails and draft 

discussions regarding NGO questions”). 

Defendants provide no authority to show that submission of a “summary” Vaughn Index, 

without more, is either a customary or acceptable means of discharging their evidentiary burden. 

Indeed, consistent precedent demonstrates that the contrary is true. As the Vaughn Court itself

cautioned: “[I]t is unreasonable to expect a trial judge to do as thorough a job of illumination and 

characterization as would a party” who is familiar with the documents and who seeks to withhold 

them. 484 F.2d at 825. 

While the form of the government’s explanations may vary, the substance must meet a 

consistent standard. If the government chooses to submit a short Vaughn Index containing 
19

abbreviated descriptions, it must supplement the index with detailed affidavits that do more than 

merely repeat the same generalized categorization of content. See Judicial Watch, Inc. v. FDA, 

449 F.3d 141, 146 (D.C. Cir. 2006); see also Coastal States Gas Corp. v. Dep’t of Energy, 617

F.2d 854, 861 (D.C. Cir. 1980) (index identifying “who wrote the memorandum, to whom it was 

addressed, its date, and a brief description of the memorandum,” accompanied by affidavits 

drafted in “conclusory terms” deemed insufficient). While the government need not furnish 

repetitive descriptions of the same type of document and may describe commonalities among its 

withholdings, it must avoid resorting to explanation in generalities. See Judicial Watch v. FDA, 

449 F.3d at 147. A “document-by-document” description in the Vaughn Index may not always 

be necessary, particularly when the withholdings comprise multiple, duplicative records and 

when the government’s supporting affidavits are “sufficiently detailed to allow the district court 

to fairly evaluate” the application of a claimed exemption to distinct categories of documents. 

See Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994); see also Landmark Legal Found. v. 

IRS, 267 F.3d 1132, 1138 (D.C. Cir. 2001) (“It is not the agency’s fault that thousands of 

documents belonged in the same category, thus leading to exhaustive repetition.”). 

Indeed, in certain past FOIA cases, this Court has refrained from demanding exhaustive 

descriptions of each redacted document where so doing would “exalt form over substance.”

Smith v. Dep’t of Labor, 798 F. Supp. 2d 274, 281 (D.D.C. 2011). Such findings, however, have 

been limited to occasions when the government agency has only redacted small portions of a 

limited number of contested records, and the non-redacted content has provided more than 

enough detail for both plaintiff and judicial review. See id. This case is not analogous in any 

respect. A substantial number of ICE documents that remain in contention have either been 

heavily redacted or withheld in their entirety. In general, the text that has been made public does 
20

not suffice to allow Plaintiff to glean adequate context or engage in the type of advocacy that 

FOIA seeks to encourage. Of perhaps greater concern, ICE’s Vaughn Index does not offer a 

useable point of reference to negotiate nearly 600 pages of withholdings, a problem that is 

discussed in further detail in relation to each claimed FOIA exemption. See Sections 

III(B)(2)(a)-(b), infra. 

This Court, consequently, holds that Defendants’ Vaughn Index and explanations of the

withholdings are insufficient as a whole. On these grounds alone, the Court must deny the 

Motion for Summary Judgment as to ICE’s withholdings. If ICE does not produce the contested 

records, it must submit revised documentation that is sufficiently detailed and comprehensive to

meet the evidentiary standards set out in King, 830 F.2d at 224, as well as the exemption-specific 

standards, which are discussed in detail in the sections that follow.

2. Applicability of Specific Exemptions

Plaintiff’s challenges to specific withholdings turn principally on the applicability of 

FOIA Exemptions 5 and 7(E); AIC no longer contests ICE’s withholdings under Exemptions 6 

and 7(C). See Opp. at 22-32; Reply at 14-16. The Court, consequently, need not decide whether 

Defendants have improperly withheld portions of documents described in the Vaughn Index (at 

1) as containing “personally identifiable information.” See Hopkins v. Women’s Div., Gen. Bd. 

of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well understood in this Circuit 

that when a plaintiff files an opposition to a dispositive motion and addresses only certain 

arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to 

address as conceded.”), aff’d 98 F. App’x 8 (D.C. Cir. 2004) The Court will thus consider 

Exemptions 5 and 7(E) in turn.
21

a. Exemption 5

FOIA Exemption 5 applies to “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). Withholdings are restricted to “those documents, and only those 

documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 

421 U.S. 132, 149 (1975); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 798-99 

(1984). In contrast to disclosures in that context, the needs of a particular plaintiff are irrelevant 

to a court’s determination of whether a particular communication is exempt from disclosure 

under (b)(5). Martin v. Office of Special Counsel, Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 

(D.C. Cir. 1987) (citing Sears, Roebuck, 421 U.S. at 149).

Exemption 5 encompasses three distinct components relevant here – namely, the 

deliberative-process privilege (sometimes referred to as “executive privilege”), the attorney 

work-product privilege, and the attorney-client privilege. Am. Immigration Council v. U.S. 

Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 216 (D.D.C. 2012). In addition to meeting the 

distinct evidentiary burden for each relevant privilege of (b)(5), the government must 

demonstrate that its withholdings satisfy the threshold requirement of “inter-agency or intraagency memorandums.” 5 U.S.C. § 552(b)(5). The Court will address this threshold 

requirement first and then move to each of the three privileges.

i. Inter-Agency or Intra-Agency Memoranda

The types of records that qualify as inter-agency or intra-agency memoranda under 

Exemption 5 are not limited to exchanges between government personnel and may also include 

deliberative discussions with private liaisons acting in the capacity of consultants and providing 

input at the behest of the government. See Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 
22

512 F.3d 677, 686-87 (D.C. Cir. 2008). Whenever a private liaison initiates the contact and

communicates with his or her “own . . . interests in mind,” such communications cannot satisfy

the threshold requirement of Exemption 5. See Dep’t of Interior v. Klamath Water Users 

Protective Ass’n, 532 U.S. 1, 12 (2001). 

At present, Defendants’ documentation is insufficient for the Court to determine 

whether the records withheld under Exemption 5 satisfy the inter-agency or intra-agency 

memoranda test. In order for the Court to apply this (b)(5) threshold requirement, Defendants

must provide some indication as to the identities of the agency personnel and other individuals 

involved in a particular exchange. Neither the summary Vaughn Index nor the accompanying 

documents do so. In a typical Vaughn Index entry, Defendants conclude: “FOIA Exemption 5 is 

applied to protect from disclosure draft declarations that are deliberative, non-finalized versions 

being reviewed. Draft materials reflect the agency decision making process and are deliberative 

in nature.” Vaughn Index at 2. Elsewhere, Defendants offer thin, conclusory statements such as: 

“The withheld and redacted information meets the threshold for ‘inter-agency or intra-agency 

memorandums or letters,’ none of which are communications with third parties.” Mot. at 10. 

Despite Plaintiff’s requests for additional information on the “authors and intended recipients” of 

these documents, Opp. at 22, Defendants simply repeat verbatim the same inadequate 

justification, maintaining that “none [of the documents] are communications with third parties.” 

Reply at 10. 

Defendants have released many of their documents in partially redacted form, which, 

under ideal circumstances, could “supplement[] the Vaughn index . . . and ‘serve[] to illuminate 

the nature of the redacted material.’” Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)

(quoting Judicial Watch v. FDA, 449 F.3d at 145). Unfortunately, the unredacted portions of the 
23

documents do little, if anything, to prove that they meet the threshold requirement of (b)(5). For 

all the email exchanges in this category, Defendants have also redacted names and personal 

identifiers for the majority of senders and recipients, and the text rarely displays email signatures 

attesting to the parties’ positions or agency affiliations. See, e.g., 2012FOIA8229.000817-0820; 

0798-0799 (email chain provides title and affiliation of sender but do not identify recipients). 

The non-email records withheld under Exemption 5 characteristically fail to provide any 

identification of either the author or intended audience. See, e.g., 2012FOIA8229.000965-0966

(document redacted in full and lacking identifying information; Vaughn Index misidentifies the 

document as an email communication); 2012FOIA8229.001020-1021 (handwritten notes 

redacted in full without indication of source or recipient; Vaughn Index misidentifies the 

document as an email communication). Although the Court could end its analysis here, it hopes 

that the following discussion of each privilege proves instructive on what must further be 

accomplished if the government desires to protect these documents.

While many of Defendants’ (b)(5) withholdings may in fact qualify as inter-agency or 

intra-agency memoranda, the current state of the documentation is insufficient to adequately 

support a request for summary judgment. The Court could opt to use its in camera review to 

engage in informed guesswork as to the identities of the authors and recipients of each document, 

but that hardly seems an appropriate endeavor.

ii. Deliberative-Process Privilege

The deliberative-process privilege of Exemption 5 “calls for disclosure of all opinions 

and interpretations which embody the agency’s effective law and policy,” while “withholding []

all papers which reflect the agency’s group thinking in the process of working out its policy and 

determining what its law shall be.” Sears, Roebuck, 421 U.S. at 153 (internal quotations
24

omitted). In order to justify a withholding under this privilege, the government must prove two 

basic elements. First, it must demonstrate that the document qualifies as “pre-decisional” in the 

sense that it was “[a]ntecedent to the adoption of an agency policy.” Jordan v. U.S. Dep’t of 

Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc), partially overruled on other grounds by

Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051, 1053 (D.C. Cir. 1981). 

Second, the government must show that the document forms “a direct part of the deliberative 

process in that it makes recommendations or expresses opinions on legal or policy matters.” 

Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) (Vaughn II); see also Pub. Citizen, Inc. 

v. Office of Mgmt. and Budget, 598 F.3d 865, 876 (D.C. Cir. 2009) (explaining that “[a] 

document that does nothing more than explain an existing policy cannot be considered 

deliberative”). These elements are referred to as “predecisional” and “deliberative.”

Over the years, courts in this Circuit have developed a substantial body of precedent to 

guide the government in formulating descriptions of its deliberative-process withholdings. A 

court’s decision on the applicability of this privilege fundamentally “depend[s] upon the 

individual document and the role it plays in the administrative process.” Coastal States, 617 F.2d 

at 867. The government, accordingly, bears the burden of situating the document within that 

process and must provide detailed information on the “nature of the decisionmaking authority 

vested in the office or person issuing the disputed document,” Taxation with Representation 

Fund v. IRS, 646 F.2d 666, 678 (D.C. Cir. 1981), as well as the “relative positions in the 

agency’s ‘chain of command’ occupied by the document’s author and recipient.” Senate of the 

Com. of Puerto Rico, 823 F.2d at 586 (quoting Arthur Andersen & Co. v. IRS., 679 F.2d 254, 

258 (D.C. Cir. 1982)). Indeed, in order to discharge its burden, the government must specifically 

“establish[] what deliberative process is involved, and the role played by the documents in issue 
25

in the course of that process.” Coastal States, 617 F.2d at 868 (citing Vaughn II, 523 F.2d at

1146). 

In this case, Defendants have consistently failed to provide the type of information 

required to discharge their burden of proof under the deliberative-process privilege. Starting 

with the “summary” Vaughn Index, Defendants have offered perfunctory descriptions that are 

vague and categorical. In one example, a single entry invokes the deliberative-process privilege 

for a laundry list of records including “draft operational plans, comments on the premises 

description, draft investigation summaries, draft Operational Procedures, and proposed personnel 

assignments.” Vaughn Index at 2. The entry claims that these materials “reflect the agency 

decision making process and are deliberative in nature,” id., without offering any description of 

this process, the identities of either the drafters or the recipients of the documents, or their 

respective positions within the agency “chain of command.” Senate of the Com. of Puerto Rico, 

823 F.2d at 586 (citing Anderson, 679 F.2d at 258). 

Defendants’ subsequent submissions, furthermore, do not aid the Court in making an 

informed assessment of whether redacted information is either predecisional or deliberative. 

Defendants assert that all of the documents withheld under the deliberative-process prong 

“consist[] of three categories of information,” constituting “part of the internal deliberations of 

federal government employees regarding issues that resulted in final agency decisions.” Reply at 

12. The categories that follow in Defendants’ shorthand list do not identify individual 

documents, but merely provide broad-brush descriptions of their content. See id.

For some of the Vaughn entries, it is unclear whether Defendants invoke the deliberativeprocess privilege at all, a confusion that is only exacerbated by conflicting statements in 

Defendants’ Reply and on the marked portions of the documents submitted for in camera review. 
26

For instance, Defendants draw the Court’s attention to an entry in the Index encompassing nine

separate documents, claiming that none of the records has any relationship to the deliberativeprocess privilege. See Reply at 11-12 (quoting Vaughn Index at 3). The Vaughn entry itself, 

conversely, is at best ambiguous on this point, employing the word “deliberative” and cautioning 

that disclosure of the documents would create a “chilling effect on the free and frank exchange of 

ideas within the agency.” Vaughn Index at 3. 

In camera review, furthermore, reveals a number of discrepancies between the 

descriptions in Defendants’ Reply and the markings actually included on the face of the redacted 

documents. For example, Defendants claim that document 2012FOIA8229.000788-0789 is only 

withheld pursuant to the work-product and attorney-client prongs of (b)(5) (or possibly both 

simultaneously). See Reply at 11-12. The document itself, however, clearly bears the 

abbreviation for deliberative process (b5DP) and does not bear the abbreviation for the workproduct prong. See 2012FOIA8229.000788-000789. Defendants also claim that they invoke

only the work-product and attorney-client privileges for documents 2012FOIA8229.000798-

0799, 0801, 0805, 0809-0810, 0913-0915, 0932-0933, 0965-0966, and 1020-1021, see Reply at 

14, and not the deliberative-process prong. See id. at 10-12. Such a claim is perplexing given 

that most of the documents that Defendants refer to, with the exception of pages 0805, 0809-

0810 (not currently found in Defendants’ withholdings) and pages 1020-1021, bear the 

abbreviation for deliberative process. This is just one of the many instances in which Defendants

have provided contradictory, misleading, and poorly explained accounts of their withholdings. It 

should not require the Court’s review to discern these obvious errors.

It may very well be that many of the redacted documents qualify for the protections of 

Exemption 5 for reasons of deliberative process. Indeed, past cases have found that the 
27

deliberative-process privilege often exempts the disclosure of documents that resemble a number 

of those that Defendants have submitted. See Judicial Watch, Inc. v. U.S. Dep’t of Homeland 

Sec., 880 F. Supp. 2d 105, 111-12 (D.D.C. 2012) (email exchanges discussing draft responses to 

press inquiries); Exxon Corp. v. Dep’t of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) 

(documents marked as “draft”). This Court, however, is not at liberty to draw such conclusions 

based on mere inference and guesswork. As other courts in this District have emphasized: “Mere 

classification of a document as a ‘draft document’ does not end the inquiry; the government must 

also prove that the document is pre-decisional and related to a deliberative process.” Techserve 

Alliance v. Napolitano, 803 F. Supp. 2d 16, 27 (D.D.C. 2011) (citing Coastal States, 617 F.2d at 

866). Given the current state of Defendants’ documentation, the Court cannot agree that

Defendants’ withholdings are proper under the deliberative-process prong of (b)(5).

iii. Attorney Work-Product Privilege

The attorney work-product prong of Exemption 5 extends to “documents and tangible 

things that are prepared in anticipation of litigation or for trial” by an attorney. Fed. R. Civ. P. 

26(b)(3)(A). As this Court has noted in the past, the work-product privilege is relatively broad, 

encompassing documents prepared for litigation that is “foreseeable,” if not necessarily 

imminent. See Am. Immigration Council, 905 F. Supp. 2d at 221. The privilege is not endless, 

however. 

While it may be true that the prospect of future litigation touches

virtually any object of a [law-enforcement agency] attorney’s 

attention, if the agency were allowed “to withhold any document 

prepared by any person in the Government with a law degree 

simply because litigation might someday occur, the policies of the 

FOIA would be largely defeated.” 

Senate of the Com. of Puerto Rico, 823 F.2d at 586-87 (quoting Coastal States, 617 F.2d at 865). 

When reviewing a withholding under the work-product prong of (b)(5), the “‘testing 
28

question’ . . . is ‘whether, in light of the nature of the document and the factual situation in the 

particular case, the document can fairly be said to have been prepared or obtained because of the 

prospect of litigation.’” In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (quoting Senate 

of the Com. of Puerto Rico, 823 F.2d at 586 n.42) (emphasis added). At a minimum, the 

government must demonstrate that the lawyer who prepared the document possessed the 

“subjective belief that litigation was a real possibility, and that belief must have been objectively 

reasonable.” Id. It follows that, in order for the government to discharge its evidentiary burden,

it must 1) provide a description of the nature and contents of the withheld document, 2) identify 

the document’s author or origin (by job title or otherwise), 3) describe the factual circumstances 

that surround the document’s creation, and 4) provide some indication of the type of litigation for 

which the document’s use is at least foreseeable. 

Unfortunately, Defendants’ withholdings under the work-product prong of (b)(5) suffer 

the same infirmities identified for their deliberative-process withholdings. For starters, all of 

Defendants’ submissions lump the analyses of attorney-client and work-product documents 

together, offering practically indistinguishable justifications for the use of both prongs. See, e.g.,

Mot. at 12-14; Reply at 12-14. These submissions rely on categorical summaries that supposedly 

apply to multiple, different documents. In one such example, Defendants opine that “documents 

withheld or redacted pursuant to Exemption 5 were protected by either the attorney-client 

privilege or the attorney work-product doctrine, or in some cases, both privileges.” Mot. at 12. 

In what explanation follows, Defendants provide only abstract descriptions covering at least 

twenty-three documents, see id. at 13-14 (“request[s] [for] legal advice and representation for a 

specific purpose,” “employees seeking legal advice in response to a specific issue,” “emails 

regarding specific litigation cases or enforcement operations”), paired with unvarnished claims to 
29

the effect that that “the documents are textbook examples of attorney work product and 

information protected from disclosure by the attorney-client privilege.” Id. at 13.

The Vaughn Index fares no better, grouping multiple, distinct documents under generic 

headings that are formulated in the broadest possible terms. See, e.g., Vaughn Index at 3 

(providing such categories as “Litigation Reports and Attorney notes regarding ongoing cases,” 

and “Emails and draft discussions regarding NGO questions”). The index descriptions are as 

short on detail as they are expansive in scope. See id. (“These materials were drafted by 

attorneys in contemplation of litigation and are therefore attorney work product. Additionally, 

these materials were intended to be confidential and to be shared with only with clients and are 

therefore also protected by the attorney-client privilege.”). Ostensibly, the Court is left to 

untangle the various strands of argument and to attempt to impose some semblance of order on 

this textual confusion. 

While the Court recognizes that the government must walk a fine line between underand over-disclosure, the work-product prong of Exemption 5 requires that agencies make a goodfaith effort to describe the nature of each individual document and the particular circumstances 

that make its use in litigation foreseeable. See In re Sealed Case, 146 F.3d at 884; Senate of the 

Com. of Puerto Rico, 823 F.2d at 586 n.42. Without such information, the Court cannot

distinguish true work-product documents from those that happen to have been penned by 

someone with a law degree. 

An example from the Court’s in camera review of the documentation is illustrative. 

Document 2012FOIA8229.001020-1021 is described in Defendants’ Vaughn Index as an 

“[e]mail[] regarding specific litigation cases or Enforcement Operations,” to which either the 

work-product, attorney-client, or both privileges apply. See Vaughn Index at 4. The actual 
30

document is a scanned copy of handwritten notes (as opposed to an email) that neither bears the 

name and function of the author, nor identifies the document’s purpose. This is typical of 

Defendants’ withholdings pursuant to the work-product privilege. Rather than playing the role 

of the sleuth and attempting to deduce the nature and purpose of each document through its in 

camera review, the Court urges Defendants to submit a sufficiently detailed and particularized 

description of each document that they wish to withhold in accordance with the guidelines set 

out above. Summary judgment for Defendants’ work-product withholdings is thus clearly 

unwarranted.

iv. Attorney-Client Privilege

Exemption 5 also extends to attorney-client privileged documents – namely, confidential 

communications from clients to their attorneys, as well as communications from attorneys to 

their clients containing confidential information supplied by the client. See Tax Analysts v. IRS, 

117 F.3d 607, 618 (D.C. Cir. 1997). As with the other prongs of (b)(5), it falls to the government 

to prove, through “detailed and specific information,” that the withheld information falls within 

the domain of the attorney-client privilege. See Campbell, 164 F.3d at 30. In order to prevail on

a motion for summary judgment in this area, the government must substantiate five essential 

elements in its supporting documentation: 

(1) [T]he holder of the privilege is, or sought to be, a client; (2) the 

person to whom the communication is made is a member of the bar 

or his subordinate and, in connection with the communication at 

issue, is acting in his or her capacity as a lawyer; (3) the 

communication relates to a fact of which the attorney was informed 

by his client, outside the presence of strangers, for the purpose of 

securing legal advice; and (4) the privilege has been claimed by the 

client. Additionally, [(5)] a “fundamental prerequisite to the 

assertion of the privilege” is “confidentiality both at the time of the 

communication and maintained since.”
31

Judicial Watch, Inc. v. U.S. Dep’t of Homeland Sec., 841 F. Supp. 2d 142, 153-54 (D.D.C. 2012) 

(citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984); Coastal States, 617 F.2d at 863); 

accord Fed. Trade Comm’n v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002).

“In the governmental context, the ‘client’ may be the agency and the attorney may be an 

agency lawyer.” Tax Analysts, 117 F.3d at 618. Where an agency lawyer serves in a mixed 

capacity that involves responsibilities both within and “outside the lawyer’s sphere,” however, 

the agency employee’s communications will only be protected to the extent that they involve his 

or her professional, legal capacity. In re Sealed Case, 737 F.2d at 99.

In this case, ICE has withheld over 100 pages of documents under the attorney-client 

privilege of (b)(5), see Vaughn Index at 3-4, although some of these records are no longer 

challenged. See Jt. Stip., ¶ 3. Defendants’ Vaughn Index provides, at best, thin descriptions of 

broad categories of materials, paired with assertions that merely parrot legal conclusions. For 

example, a Vaughn entry applicable to nine separate documents spanning fifteen pages of 

material tersely concludes that “[i]n each instance, the client was seeking legal advice from the 

attorney.” Vaughn Index at 3. In another entry encompassing more than seventy pages, 

Defendants claim that “[T]hese materials were intended to be confidential and to be shared only 

with clients.” Id. While this may very well be true, the Court simply cannot issue summary 

judgment on the grounds that the disputed materials were “intended” to be held in confidence. 

The government must demonstrate confidentiality in fact, whatever its subjective intentions may 

have been. See In re Sealed Case, 737 F.2d at 100. 

Elsewhere in its submissions, Defendants offer explanations of their attorney-client 

withholdings that are equally insufficient. Justifications for both the work-product and attorneyclient prongs are lumped together and more or less reproduce the categorical descriptions offered 
32

in Defendants’ Vaughn Index. See Reply at 12-14. Inexplicably, the Reply devotes additional 

time and energy to a number of withholdings that Plaintiff no longer contests, see id. at 13, 

allocating a mere paragraph for those that remain in play. See id. at 14. None of Defendants’

submissions offers a document-specific analysis of their attorney-client privileged withholdings, 

as required. The explanations, moreover, do not provide any of the factual detail necessary to 

discharge the government’s burden for proof. Defendants do not provide any detail to suggest

that each exchange involved an attorney or a client, In re Sealed Case, 737 F.2d at 98–99, show 

that the record was premised on a confidential disclosure from the client, id., offer any indication

that the exchanges did not involve any non-clients or “strangers,” id., or supply any details to 

demonstrate that agency counsel acted in a professional legal capacity, as opposed to a 

managerial or other capacity. Id. Defendants’ submissions, furthermore, do not attempt to prove 

that the underlying information in each document was initially kept secret and remains so. See

Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977) (holding 

that documents should be disclosed unless the government could reasonably demonstrate that the 

information was “supplied by the Air Force [to agency counsel] with the expectation of secrecy 

and was not known by or disclosed to any third party”). The confidentiality of a communication 

is not something this Court is at liberty to assume. See id.

Defendants request that this Court engage in precisely this type of unjustified assumption

and find that the applicability of the attorney-client privilege is “plainly evident by the 

descriptions, and in some cases, the titles of the documents themselves.” Reply at 13. Even if 

FOIA authorized the courts to make such findings based upon an in camera review of the 

documents alone, Defendants would still be asking too much. This Court has no independent 

knowledge of the specific roles and responsibilities of staff members and legal counsel at ICE. If 
33

ICE wishes to withhold any of the responsive documents pursuant to the attorney-client prong of 

Exemption 5, it must submit a sufficiently detailed and particularized description of each

withholding that meets the D.C. Circuit’s long-established evidentiary requirements. See In Re 

Sealed Case 737 F.2d at 98–99; Coastal States, 617 F.2d at 863. In the event that ICE is 

legitimately concerned that providing certain factual details will compromise the confidentiality 

of information within a record, it may choose to supply the Court with a supplemental affidavit 

that can be reviewed in camera. The Court, therefore, denies summary judgment for all 

Defendants’ withholdings under the attorney-client prong of Exemption 5.

b. Exemption 7(E)

Exemption 7(E) authorizes the government to withhold records and documents if they 

were “compiled for law enforcement purposes,” provided that their publication “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). Defendants invoke

Exemption 7(E) for a variety of records, which are grouped under four broad categories: “All 

documents containing commonly withheld techniques and procedures of law enforcement,” 

“Detention Management Division Facility Reviews,” “Draft Operation Plan,” and “Enforcement 

Operation Plan.” Vaughn Index at 1-2. The Vaughn Index only matches a limited number of 

these 7(E) withholdings to specific document page ranges. The remainder are described as 

occurring “[t]hroughout” the disputed documents. Id. at 1. Since the disputed records appear to 

be limited to those containing “law enforcement techniques and procedures,” see, e.g., Mot. at 

19-20; Law Decl., ¶ 54, the Court need not consider whether Defendants could also withhold any 
34

of the relevant documents on the grounds that they disclose “guidelines for law enforcement 

investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). 

In order for the government to invoke the “techniques and procedures” prong of 7(E), it 

must demonstrate that its withholdings meet three basic requirements. First, the government 

must show that the documents were in fact “compiled for law enforcement purposes” and not for 

some other reason. Id. Second, it must show that the records contain law-enforcement 

techniques and procedures that are “generally unknown to the public.” Nat’l Whistleblower Ctr. 

v. Dep’t of Health & Human Servs., 849 F. Supp. 2d 13, 36 (D.D.C. 2012). Finally, the 

government must show that disclosure “could reasonably be expected to risk circumvention of 

the law.” Id. The Court will discuss the first threshold requirement and then cover the other two 

together.

i. Law-Enforcement Purposes

To ascertain whether certain of Defendants’ records were “compiled for law enforcement 

purposes,” the Court must first have a clear understanding of “how and under what 

circumstances the requested files were compiled, . . . and ‘whether the files sought relate to 

anything that can fairly be characterized as an enforcement proceeding.’” Jefferson v. U.S. 

Dep’t of Justice, Office of Prof’l Responsibility, 284 F.3d 172, 176-77 (D.C. Cir. 2002) (citing 

Weisberg v. U.S. Dep’t of Justice, 489 F.2d 1195, 1202 (D.C. Cir. 1973) (quoting Aspin v. Dep’t 

of Defense, 491 F.2d 24, 27 (D.C. Cir.1973)). 

As Defendants correctly note, ICE is an agency specializing in law enforcement, and,

consequently, its decision to invoke Exemption 7(E) is entitled to a measure of deference. See

Reply at 15 (citing Abdelfattah v. U.S. Imm. & Customs Enforcement, 851 F. Supp. 2d 141, 145 

(D.D.C. 2012)); accord Campbell, 164 F.3d at 32. This deferential standard of review, however,
35

is not a “vacuous” one, and it does not authorize a wholesale departure from all evidentiary

requirements. See Campbell, 164 F.3d at 32. On the contrary, a law-enforcement agency must 

still make a showing of “law enforcement purposes” by providing a sufficient explanation that 

“establish[es] a rational ‘nexus between [the withholding] and one of the agency’s law 

enforcement duties,’” as well as a “connection between an ‘individual or incident and a possible 

security risk or violation of federal law.’” Id. (citing Pratt v. Webster, 673 F.2d 408, 419 (D.C. 

Cir. 1982)). If the law-enforcement agency’s explanatory documents “fail to supply facts” in 

sufficient detail to meet the Pratt nexus test, the reviewing court cannot grant summary judgment 

in the agency’s favor. Quinon v. FBI, 86 F.3d 1222, 1229 (D.C. Cir. 1996).

Defendants’ Vaughn Index and associated documentation fall well below the standard set 

out in Pratt. Aside from the obvious difficulties created by Defendants’ refusal to specifically 

identify the locations of many of their 7(E) withholdings, see, e.g., Vaughn Index at 1 (providing 

a list of different “law enforcement techniques” for which no page numbers are indicated), their

argument appears to rest almost entirely on the premise that, as a law-enforcement agency, ICE’s 

records and documents are necessarily produced for law-enforcement purposes. See Law Decl., 

¶ 47 (“ICE is tasked with preventing any activities that threaten national security and public 

safety . . . . Therefore, all the records responsive to Plaintiff’s FOIA request were compiled for 

law enforcement purposes and meet the threshold requirement of FOIA exemption (b)(7).”). 

Defendants summarily conclude that, because Plaintiff requested information related to 

“activities that ICE performs in a law enforcement and national security context,” this Court can 

take it for granted that all of ICE’s withholdings under Exemption 7(E) automatically satisfy the 

“law enforcement purposes” requirement. See Reply at 15. The Court notes that similar 

explanations prepared by ICE’s FOIA unit and submitted in other jurisdictions have been 
36

deemed insufficient to prove that the underlying records were “compiled for law enforcement 

purposes.” See Black v. U.S. Dep’t of Homeland Sec., No. 10-2040, 2012 WL 3155142, at *3

(D. Nev. Aug. 2, 2012) (declaration insufficient because it failed to “discuss: (1) the underlying 

[] investigation to show that the investigation was conducted pursuant to [ICE’s] law 

enforcement duties, or (2) how ICE determined that the underlying investigation was for law 

enforcement purposes”).

In this case, the Court must follow consistent Circuit precedent by requiring Defendants

to submit further factual explanations that satisfy the Pratt standard. At a minimum, Defendants

must provide an itemized listing of their withholdings and redactions pursuant to 7(E), 

accompanied by a description of the circumstances in which the records were compiled, 

Jefferson, 284 F.3d at 177, the relevant law-enforcement activity for each, Campbell, 164 F.3d at 

32, the nature of the incident or individual involved, id., and the perceived security risk or likely 

violation of the law. Id. While Defendants need not provide repetitive descriptions of redundant 

documents, they should not resort to description in “generalities” for multiple, different texts. 

Judicial Watch v. FDA, 449 F.3d at 147.

ii. Remaining Evidentiary Requirements of 7(E)

Given that Defendants’ documentation fails to sufficiently meet the threshold 

requirement of showing that each record was “compiled for law enforcement purposes,” this 

Court need not engage in further analysis to determine whether summary judgment is appropriate 

for Defendants’ 7(E) withholdings. To assist Defendants in their future efforts, the Court will 

nonetheless summarize the evidentiary requirements that must be met in order to prove that the

withholdings contain “techniques and procedures” not generally known to the public, Nat’l 
37

Whistleblower Ctr., 849 F. Supp. 2d at 36, the disclosure of which could “reasonably be 

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

While the government faces a “relatively low bar” to show that it has properly withheld 

documents containing law-enforcement techniques and procedures, Blackwell v. FBI, 646 F.3d 

37, 42 (D.C. Cir. 2011), it must nevertheless provide a “relatively detailed justification” for each 

record that permits the reviewing court to make a meaningful assessment of the redactions and to 

understand how disclosure would create a reasonably expected risk of circumvention of the law. 

Strunk v. U.S. Dep’t of State, 845 F. Supp. 2d 38, 47 (D.D.C. 2012) (citing Blackwell, 646 F.3d 

at 42)). Generic portrayals of categories of documents and vaguely formulated descriptions will 

not suffice; accordingly, the government must provide sufficient facts and context to allow the 

reviewing court to “deduce something of the nature of the techniques in question.” Clemente v. 

FBI, 741 F. Supp. 2d 64, 88 (D.D.C. 2010); accord Davis v. FBI, 770 F. Supp. 2d 93, 100 

(D.D.C. 2011) (finding defendant’s “generic description of the documents as ‘prosecution 

memoranda . . . detailing evidence gathering efforts and prosecution strategies in [plaintiff’s] 

criminal case’” insufficient to describe techniques and procedures involved); Strunk, 845 F. 

Supp. at 46-47 (summary listing of categories of techniques and procedures, including “computer 

screen transaction codes . . . examination and inspection procedures, internal reporting 

requirements, names of specific law enforcement databases, . . .” not enough to discharge 

evidentiary burden). 

Defendants’ descriptions of its withholdings under Exemption 7(E) exhibit all of the 

inadequacies that courts in this Circuit have cautioned against. The Vaughn Index groups many 

of the 7(E) withholdings into a single, catchall category for which no page numbers are 

indicated. See Vaughn Index at 1 (“All documents containing commonly withheld techniques 
38

and procedures of law enforcement”). The Index also fails to adequately describe the nature of 

the underlying techniques and procedures, instead offering a laundry list of what that may be 

included “throughout” the various documents. See id. (various techniques “includ[e] agent 

assignment codes, operation names, agency case numbers, National Program Manager email 

addresses, TECS Access Codes, Program Codes, Radio Channels, [] encounter identification 

numbers . . . [h]ow law enforcement officer access databases, access case material, access 

agency radio channels, store evidence, reference related cases . . .” and so on). Defendants’ 

briefs and supporting declarations exhibit the same flaws, often resorting to categorical 

descriptions that occasionally diverge from those in the Vaughn Index. See, e.g., Law Decl. ¶ 54 

(listing a number of items not found in Vaughn Index including, inter alia, “methods used by 

ICE to identify individuals believed to be illegal aliens using the identity of U.S. Citizens . . . , 

secured URL addresses,” and “site reporting locations”). 

The Court is not expecting such full disclosure as to defeat the purpose of the exemption, 

but in past cases analyzing 7(E) withholdings, courts in this District have found that the 

government carried its evidentiary burden where it provided 1) a description of the technique or 

procedure at issue in each document, 2) a reasonably detailed explanation of the context in which 

the technique is used, 3) an exploration of why the technique or procedure is not generally 

known to the public, and 4) an assessment of the way(s) in which individuals could possibly 

circumvent the law if the information were disclosed. See, e.g., Skinner v. U.S. Dep’t of Justice, 

893 F. Supp. 2d 109, 113-14 (D.D.C. 2012) (detailed description of the function, application, and 

highly restrictive conditions for access to the TECS database, along with specific harms expected 

from disclosures of codes, sufficient to discharge evidentiary burden); Strunk v. U.S. Dep’t of 

State, 905 F. Supp. 2d 142, 147 (D.D.C. 2012) (explanation of the use, application, means of 
39

access to, and risks of dissemination of computer access codes sufficient to discharge evidentiary 

burden). 

At present, this Court does not have sufficient information to make an accurate 

assessment of the propriety of Defendants’ withholdings under Exemption 7(E). While past 

cases indicate that many of Defendants’ techniques and procedures are likely to qualify for 

protection, this Court is under a duty to decide the matter de novo, using only the proof 

submitted by Defendants. See Campbell, 164 F.3d at 30. While bearing in mind FOIA’s strong 

preference for public disclosure, Defendants may opt to submit confidential affidavits for in 

camera review if such a course of action is necessary to prevent the disclosure of protected lawenforcement techniques and procedures. See Simon, 980 F.2d at 784.

3. Withholdings for Which no Exemptions are Claimed

A number of Defendants’ documents that they submitted to Plaintiff and this Court in 

redacted form have been withheld without any Vaughn Index descriptions or claimed FOIA 

Exemptions. See, e.g., 2012FOIA8229.000935-0944 (marked as “non-responsive duplicate”); 

2012FOIA8229.000909-0912 (marked as “refer to DOJ”). Justifications for FOIA withholdings 

are confined to the Act’s nine narrowly tailored exemptions. See Rose, 425 U.S. at 361. Unless 

Defendants indicate the applicable exemption(s) for all of the documents in this category and 

provide a description of the contents sufficient to satisfy FOIA’s evidentiary requirements, this 

Court will have no choice but to compel disclosure.

4. Segregable Data 

At present, the Court need not address Plaintiff’s claim that Defendants have failed to 

release all reasonably segregable information from their withholdings. See Opp. at 33-35 (citing 

5 U.S.C. § 552(b)). To aid in the preparation of Defendants’ further explanations of the
40

withholdings, the Court wishes to make explicit this Circuit’s precedent on segregability of nonexempt information. Defendants are correct that the government is “‘entitled to a presumption 

that [it] complied with the obligation to disclose reasonably segregable material.’” Reply at 18 

(quoting Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (alteration in original)). This

presumption of compliance, however, does not obviate the government’s obligation to carry its 

evidentiary burden and fully explain its decisions on segregability. See Mead Data, 566 F.2d at 

261. Once Defendants have specifically identified the exempted portions of their records and 

described them in accordance with the requirements set out above, see Sections III(B)(2)(a)-(b), 

supra, they must also provide descriptions of excerpts deemed to be non-segregable, with 

explanations as to these decisions. See Mead Data, 566 F.2d at 261. 

Defendants’ current conclusory assertion that ICE “has reviewed each record line-by-line 

to identify information exempt from disclosure . . . [finding that] all information not 

exempted . . . was correctly segregated,” see Reply at 18, will not suffice to discharge this 

burden. As the D.C. Circuit stressed in Mead Data, “[U]nless the segregability provision of the 

FOIA is to be nothing more than a precatory precept, agencies must be required to provide the 

reasons behind their conclusions in order that they may be challenged by FOIA plaintiffs and 

reviewed by the courts.” 566 F.2d at 261. The Court trusts that Defendants will follow this 

guidance.

IV. Conclusion

For the forgoing reasons, the Court will deny Defendants’ Motion for Summary 

Judgment in full. Defendants are advised to submit new documentation that demonstrates the 

adequacy of their search and clarifies discrepancies apparent in their prior declarations. 

Defendants must also furnish the Court with full explanations of their withholdings under all 
41

relevant FOIA Exemptions for any records and redacted portions not made available to Plaintiff. 

An Order accompanies this Memorandum Opinion.

/s/ James E. Boasberg

JAMES E. BOASBERG

United States District Judge

Date: June 24, 2013