In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

Nos. 22-2445 & 23-1900 

JESUS VIDAL-MARTINEZ, 

Plaintiff-Appellant, 

v.

UNITED STATES DEPARTMENT OF

HOMELAND SECURITY and

UNITED STATES IMMIGRATION AND 

CUSTOMS ENFORCEMENT, 

Defendants-Appellees. 

____________________ 

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:20-cv-07772 — Matthew F. Kennelly, Judge. 

____________________ 

ARGUED MAY 23, 2023 — DECIDED OCTOBER 24, 2023 

____________________ 

Before SYKES, Chief Judge, and BRENNAN and PRYOR, Circuit 

Judges. 

BRENNAN, Circuit Judge. Jesus Vidal-Martinez filed two

Freedom of Information Act (FOIA) requests with Immigration and Customs Enforcement (ICE), seeking disclosure of 

information about his transfer from ICE custody to officials in 
2 Nos. 22-2445 & 23-1900 

Decatur County, Indiana, where he faced state criminal 

charges. This case concerns redactions in a subset of documents that ICE produced. After in camera review, the district 

court ruled that ICE properly withheld the redacted information under FOIA’s exemption provisions. Vidal-Martinez 

appeals the district court’s ruling. Because that court committed no clear error, we affirm. We also affirm the district court’s

denial of Vidal-Martinez’s request for attorney’s fees because 

he did not prevail. 

I 

The FOIA requests at issue relate to Vidal-Martinez’s immigration proceedings, so we begin there. Vidal-Martinez, a

non-citizen living in the United States, was arrested by Indiana authorities three times for operating a vehicle while intoxicated. After his third arrest in June 2020, the U.S. Department of Homeland Security detained him at the McHenry 

County Detention Center in Illinois, and ICE initiated deportation proceedings. 

A. Habeas Proceedings 

While detained, Vidal-Martinez filed a petition for a writ 

of habeas corpus. He argued that his detention was unconstitutional, in part, because it impeded his ability to defend himself against the drunk-driving charges he faced in Indiana. 

ICE asked a prosecutor whether Decatur County planned to 

pursue its charges against Vidal-Martinez. If so, ICE would 

need a writ of habeas corpus ad prosequendum1 to transfer 

1 Using this writ, “a sovereign may take temporary custody of a prisoner in the custody of another sovereign, for the purpose of prosecution, 

without acquiring primary custody.” Pope v. Perdue, 889 F.3d 410, 412–13 

(7th Cir. 2018).
Nos. 22-2445 & 23-1900 3

custody of Vidal-Martinez. The Decatur County Superior 

Court issued such a writ, and ICE transferred Vidal-Martinez

to county custody. The writ stated that Vidal Martinez would 

remain with the county “until the completion of [the] criminal 

matter, then released to his ICE detainer.” 

After the transfer, ICE moved to dismiss Vidal-Martinez’s 

habeas petition because he was no longer in ICE custody. The 

habeas court denied the motion. See Vidal-Martinez v. Prim, 

No. 20 C 5099, 2020 WL 6441341, at *1 (N.D. Ill. Nov. 3, 2020). 

Under this type of writ, the court explained, Indiana had only 

temporary custody over Vidal-Martinez for the duration of 

his criminal matter; ICE “maintain[ed] primary custody” as 

the “sending sovereign.” Id. at *5. Otherwise, “ICE could 

avoid jurisdiction by transferring detainees to different facilities.” Id. at *5 n.6. ICE unsuccessfully moved the district court 

to reconsider, arguing that Vidal-Martinez’s return to ICE 

custody was “by no means inevitable,” “counties often disregard [a] writ’s language,” and “the detainer is not a form of 

legal compulsion that guarantees [Vidal-Martinez’s] return.” 

ICE also emphasized that it had not initiated Vidal-Martinez’s 

transfer “to affect habeas jurisdiction, but to accommodate 

[his] desire to return to Indiana to litigate his drunk-driving 

charges.” 

While in Decatur County, Vidal-Martinez was convicted 

on the drunk-driving charge and sentenced to 236 days in jail. 

He was then returned to ICE custody. Due to a lack of evidence that he posed a flight risk or a danger to the community, the district court granted Vidal-Martinez’s habeas petition and ordered his release. See Vidal-Martinez v. Acuff, No. 

21-cv-224-NJR, 2021 WL 1784948, at *6 (S.D. Ill. May 5, 2021). 
4 Nos. 22-2445 & 23-1900 

B. FOIA Requests

In October and December 2020, Vidal-Martinez filed two 

requests under FOIA, 5 U.S.C. § 552, seeking disclosure from 

ICE of email communications, notes, and reports related to his

custody transfer to Decatur County. ICE acknowledged receipt of his first request in November 2020 but failed to process it within FOIA’s 20-day statutory time frame. See 5 U.S.C. 

§ 552(a)(6)(A). So, Vidal-Martinez initiated this lawsuit 

against ICE and submitted a second FOIA request in December 2020. The district court granted ICE’s request for an extension to respond to Vidal-Martinez’s complaint. ICE explained 

it was actively working through a COVID-era backlog of requests which it answered in the order received. Between 

March and April 2021, ICE produced 561 pages of responsive 

documents, some of which contained redactions. It later produced additional records in August 2021. 

Vidal-Martinez challenged ICE’s redactions in a 51-page 

subset of the produced records, and the parties filed crossmotions for summary judgment. ICE provided the district 

court with a Vaughn index2 and a declaration from its FOIA 

officer explaining the legal justification for each redaction at 

issue. ICE claimed its redactions fell into two categories: 

(1) information protected by the attorney-client, work product, or deliberative process privileges withheld under 5 U.S.C. 

§ 552(b)(5); and (2) identifying information of government 

employees withheld under 5 U.S.C. § 552(b)(6) and (b)(7)(C).

Vidal-Martinez responded that ICE committed criminal 

2 A Vaughn index lists each withheld document cross-referenced with 

the FOIA exemption that the government agency asserts applies. See 

Vaughn v. Rosen, 484 F.2d 820, 826–28 (D.C. Cir. 1973). 
Nos. 22-2445 & 23-1900 5

conduct by transferring him to Indiana, so the crime-fraud exception to attorney-client privilege applied. 

After reviewing the unredacted versions of the 51 pages in 

camera, the district court granted summary judgment to ICE. 

It found that ICE had properly invoked the § 552(b)(5) exemption because the communications discussed ICE’s decision to 

transfer Vidal-Martinez and were therefore protected by the 

deliberative process privilege. And it concluded that ICE 

could redact the names of government employees under 

§ 552(b)(6) and (b)(7)(C) because disclosure would not serve 

any public interest. 

The district court rejected Vidal-Martinez’s crime-fraud 

argument. The redacted emails “consist[ed] of conversations 

between ICE attorneys and a Decatur County prosecutor” 

about whether “to transfer Vidal-Martinez.” In those discussions, ICE attorneys “believed a conviction in the state court 

cases would strengthen ICE’s case for deportation.” Although 

incorrect, the ICE attorneys “genuinely believed” that a custody transfer “would result in the federal court losing jurisdiction over the habeas corpus case.” The court found “no evidence that ICE deliberately misled the [habeas] court when it 

argued that the habeas case should be dismissed.” So, the 

crime-fraud exception did not apply. Vidal-Martinez now appeals the district court’s grant of summary judgment in favor 

of ICE. 

While this appeal was pending, Vidal-Martinez petitioned 

the district court for attorney’s fees. He argued that he “substantially prevailed” because his complaint prompted ICE to 

“change [its] position” by producing the requested documents. 5 U.S.C. § 552(a)(4)(E)(i), (ii). The district court disagreed, reasoning that ICE consistently maintained its intent to 
6 Nos. 22-2445 & 23-1900 

respond to Vidal-Martinez’s request. Any delay in satisfying 

the FOIA requests did not amount to a change in position, so 

the district court denied Vidal-Martinez’s motion. Vidal-Martinez also appeals the denial of his request for fees, which we 

consolidated with his summary judgment appeal. 

II

Congress enacted FOIA to “ensure an informed citizenry” 

and to “hold the governors accountable to the governed.” 

Nat’l Immigrant Just. Ctr. v. U.S. Dep’t of Just., 953 F.3d 503, 507 

(7th Cir. 2020). Under the Act, “federal agencies must produce 

each and every responsive record unless it fits within a statutory exemption.” Id. (citing 5 U.S.C. § 552(a)(4)(B)). So, although FOIA favors disclosure, it also includes exemptions “to 

protect certain interests in privacy and confidentiality.” Solar 

Sources, Inc. v. United States, 142 F.3d 1033, 1037 (7th Cir. 1998). 

The government “bears the burden of justifying its decision 

to withhold the requested information pursuant to a FOIA exemption.” Id.

We employ a unique standard when reviewing a district 

court’s decision on summary judgment that an agency could 

properly withhold information under a FOIA exemption. We 

first consider “de novo whether ... the district court had an adequate factual basis for its decisions.” Stevens v. U.S. Dep’t of 

State, 20 F.4th 337, 342 (7th Cir. 2021). This depends on “the 

specificity of the agency’s affidavit, its Vaughn index, and 

whether the district court conducted an in camera review of 

the contested materials.” Id. “Our purpose at this stage is to 

decide whether the district court had enough in front of it to 

make a legally sound decision about whether an exemption 

applies.” Id. If an exemption applies, we review a district 

court’s conclusion for clear error as “the district court is best 
Nos. 22-2445 & 23-1900 7

situated to conduct the comprehensive, record-by-record review that FOIA withholdings may require.” Id. (citing Becker 

v. IRS, 34 F.3d 398, 402 n.11 (7th Cir. 1994)).3

A. Adequate Factual Basis 

The district court had an adequate factual basis to evaluate 

ICE’s withholdings. To start, ICE provided that court with a 

detailed affidavit from its FOIA officer and a Vaughn index. 

But the district court did not rely on either in considering 

whether the withheld information was protected from disclosure. Instead, at Vidal-Martinez’s request, the court reviewed 

all 51 documents in camera, which provided it with more than 

an adequate factual basis.4 See Solar Sources, 142 F.3d at 1038–

39 (concluding the district court had an adequate factual basis 

when it reviewed in camera a random sampling of “a FOIA 

request comprising millions of pages of documents” in combination with a “sworn declaration from ... a government official”); Becker, 34 F.3d at 402 (concluding the district court had 

3 Vidal-Martinez asks this court to abandon the basis-and-error standard of review used in FOIA exemption cases. In its place, he suggests we 

adopt a de novo standard. We have previously acknowledged our 

“doubts” about “how the clear-error standard pops up in an appeal from 

a summary-judgment ruling, given how well established the de novo

standard of review is in such cases.” Higgs v. U.S. Park Police, 933 F.3d 897, 

903 (7th Cir. 2019). But here, as in other cases, we find it unnecessary to 

reconsider the standard governing FOIA exemption cases. See id.; Solar 

Sources, 142 F.3d at 1038 n.5; Becker, 34 F.3d at 402 n.11. 

4 Vidal-Martinez contends the district court improperly excluded 

ICE’s affidavit and Vaughn index without evaluating those documents as 

evidence under Federal Rule of Evidence 403. Rather than exclude those 

documents, though, the court found “it unnecessary to rely” on them 

given its in camera review of the unredacted versions of all the contested 

documents.
8 Nos. 22-2445 & 23-1900 

an adequate factual basis when it had “not only the [agency’s] 

Vaughn index, but [it also] conducted an in camera review); 

Henson v. Dep’t of Health & Hum. Servs., 892 F.3d 868, 876 (7th 

Cir. 2018) (noting “[t]he district court would have had a 

stronger factual basis for its decision if the judge had reviewed the Vaughn indices or conducted an in camera review 

of at least a reasonable sample of the documents”).

B. FOIA Exemptions

In the 51 documents at issue, ICE withheld—through redactions—information based on three FOIA exemptions. Exemption 5 authorizes the withholding of “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). We have understood this exemption “to apply to documents that would be privileged in 

the government’s litigation against a private party,” Stevens, 

20 F.4th at 345 (citing Enviro Tech Int’l, Inc. v. EPA, 371 F.3d 

370, 374 (7th Cir. 2004)), meaning it “encompass[es] the attorney work product, attorney client, and deliberative process 

privileges.”5 Nat’l Immigrant Just. Ctr., 953 F.3d at 506. For 

ICE, the redacted information fell within Exemption 5 because it included ICE attorneys’ work product prepared in anticipation of pending litigation, deliberations about ICE’s decision to transfer Vidal-Martinez, and confidential advice provided by ICE attorneys to the agency. 

5 The deliberative process privilege allows an agency to protect “all 

papers which reflect the agency’s group thinking in the process of working out its policy and determining what its law shall be.” Nat’l Immigrant 

Just. Ctr., 953 F.3d at 508.
Nos. 22-2445 & 23-1900 9

Exemptions 6 and 7(C) allow agencies to withhold “personnel and medical files,” 5 U.S.C. § 552(b)(6), or information 

compiled for law enforcement purposes that “could reasonably be expected to constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), if disclosed. ICE 

removed the identifying information of government employees because it determined disclosure would put those employees at risk of harassment and would serve no public benefit. 

On appeal, Vidal-Martinez does not contest the district 

court’s conclusion that these exemptions apply to the withheld information. Rather, he argues the district court clearly 

erred in concluding that the crime-fraud exception to attorney-client privilege did not apply. “The crime-fraud exception places communications made in furtherance of a crime or 

fraud outside the attorney-client privilege.” United States v. 

BDO Seidman, LLP, 492 F.3d 806, 818 (7th Cir. 2007) (citing 

United States v. Zolin, 491 U.S. 554, 563 (1989)). To invoke the 

exception, the party seeking to defeat attorney-client privilege

must “present prima facie evidence that gives colour to the 

charge by showing some foundation in fact.” Id. (cleaned up). 

According to Vidal-Martinez, ICE sought to deprive him of 

his habeas rights, in violation of 18 U.S.C. § 241 and § 242, by 

transferring him to Decatur County. He also contends ICE 

misled the habeas court, in violation of 18 U.S.C. § 1512(c)(2), 

when it argued that Vidal-Martinez’s return to ICE custody 

was uncertain. 

The district court found “no evidence that ICE deliberately 

misled the [habeas] court when it argued that [Vidal-Martinez’s] habeas case should be dismissed” based on VidalMartinez’s custody transfer to Decatur County. For the 
10 Nos. 22-2445 & 23-1900 

district court, “the ICE attorneys appear to have genuinely believed that [the] transfer ... under a writ of habeas corpus ad 

prosequendum would lead to dismissal of the habeas corpus 

case.” It therefore found the crime-fraud exception inapplicable. 

The district court did not clearly err in its decision. We too 

find no factual foundation in the record for misconduct, let 

alone criminal conduct, by ICE. The agency did not engage in 

a criminal conspiracy by coordinating with Decatur County 

to allow Vidal-Martinez’s criminal prosecutions to go forward. And no evidence supports Vidal-Martinez’s contention 

that the federal government intentionally misled the habeas 

court. According to the writ of habeas corpus ad prosequendum, Vidal-Martinez would remain with Decatur County 

until the completion of his criminal matter, “when he will be 

released on a detainer to ICE.” ICE argued that its ability to 

produce Vidal-Martinez in response to a habeas writ would 

depend on whether Indiana honored ICE’s detainer, which 

was “by no means a certainty.” So, even if ICE expected Decatur County to cooperate with the terms of the writ and the 

detainer, it remained a possibility that it would not. Acknowledging this possibility did not intentionally mislead the habeas court.

Further, filing a motion to dismiss the habeas petition—

based on a genuine belief that transfer destroyed jurisdiction—does not mean ICE sought to “thwart” habeas review, 

as Vidal-Martinez claims. Ultimately, Vidal-Martinez obtained both habeas review and habeas relief. The district court 

committed no clear error when it decided that the crime-fraud 

exception did not apply. 
Nos. 22-2445 & 23-1900 11

III

Vidal-Martinez also challenges the district court’s decision 

not to award him costs. The district court reasoned that VidalMartinez had not substantially prevailed. When the district 

court’s denial of attorney’s fees “rests on the application of a 

principle of law, our review is de novo.” Cornucopia Inst. v. U.S. 

Dep't of Agric., 560 F.3d 673, 675 (7th Cir. 2009). 

A district court may award “reasonable attorney fees” to a 

FOIA plaintiff if he or she “substantially prevailed.” 5 U.S.C. 

§ 552(a)(4)(E)(i). A plaintiff “substantially prevailed” if he or 

she obtained relief through “(I) a judicial order” or “(II) a voluntary or unilateral change in position by the agency, if the 

complainant’s claim is not insubstantial.” 5 U.S.C. 

§ 552(a)(4)(E)(ii). Even so, “the district court has discretion to 

deny costs after considering, among other factors, the litigation’s benefit to the public.” White v. U.S. Dep’t of Just., 16 F.4th 

539, 545 (7th Cir. 2021). 

Vidal-Martinez contends his FOIA lawsuit prompted ICE 

to voluntarily change its position by responding to his FOIA 

requests. But ICE maintained the same position—that it 

would respond to his requests and provide him with all nonexempt responsive records—before and after Vidal-Martinez 

sued. ICE informed the district court that it responds to FOIA 

requests in the order received and that it faced administrative 

delays in processing those requests due to a COVID-era backlog. Regardless of those delays, ICE consistently stated its intent to respond, and nothing in the record suggests ICE took 

a position to the contrary. ICE’s production of documents resulted from the normal processing of FOIA requests.
12 Nos. 22-2445 & 23-1900 

Vidal-Martinez also asserts that because ICE produced 

documents with redactions, he prevailed. Yet this does not 

represent a “change in position” by the agency. The parties 

disagreed with what was exempt under FOIA; hence, the records when produced were redacted. This was part of the backand-forth process of an agency handling a FOIA request. Even 

more, the district court resolved the remaining redaction issues in ICE’s favor at summary judgment.

Vidal-Martinez has not shown that his complaint 

prompted ICE to voluntarily change its position. See, e.g., First 

Amend. Coal. v. U.S. Dep’t of Just., 878 F.3d 1119, 1128 (“[T]he 

mere fact that information sought was not released until after 

the lawsuit was instituted is insufficient to establish that a 

complainant has ‘substantially prevailed.’”); White v. U.S. 

Dep’t of Just., 460 F. Supp. 3d 725, 782 (S.D. Ill. 2020), aff’d, 16 

F.4th 539 (7th Cir. 2021) (denying costs when the agency “always indicated an intent to comply with FOIA in responding 

to [the plaintiff's] requests” even if the agency had “not always complied with the required timelines”). Because VidalMartinez did not substantially prevail, he is not entitled to attorney’s fees.

IV

For these reasons, we AFFIRM the district court’s grant of 

summary judgment to ICE as well as its denial of Vidal-Martinez’s request for attorney’s fees.