UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JUDICIAL WATCH, INC., ) 

) 

) 

) 

Plaintiff, 

v. ) Civil Case No. 07-506 (RJL) 

) 

U.S. DEPARTMENT OF HOMELAND 

SECURITY et al., 

) 

) 

) 

tA--

Defendants. ) 

MEMORANDUM OPINION 

(September ",-,2010) [#55, #59] 

Plaintiff Judicial Watch, Inc. ("Judicial Watch") filed this Freedom ofInformation 

Act ("FOIA") lawsuit against the U.S. Department of Homeland Security ("DHS"), the 

U.S. Department of Justice ("DOJ" or "defendant"), and the U.S. Department of State 

("State Department). 1 Before the Court are plaintiffs and DOl's cross-motions for 

summary judgment. Upon review of the pleadings, the entire record, and the applicable 

law, defendant's motion is GRANTED, and plaintiffs motion is DENIED. 

BACKGROUND 

On January 24, 2007, Judicial Watch submitted a FOIA request to the defendant 

agencies seeking certain records concerning Osbaldo Aldrete-Davila ("Aldrete-Davila"), 

a Mexican national who testified for the Government in the prosecution of two border 

patrol agents, Ignacio Ramos ("Ramos") and Jose Alonso Compean ("Compean"). 

The parties stipulated to dismissal of the claims against the State Department and DHS. 

See Joint Stip. of Partial Dismissal, Oct. 26, 2007 [#22]; Joint Stip. of Partial Dismissal, May 20, 

2008 [#41]. 

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CompI. ~~ 7-9. Although the defendant agencies were required to respond to this FOrA 

request within twenty days, see 5 U.S.C. § 552(a)(6)(A)(i), they failed to produce any 

responsive records within that time frame. CompI. ~~ 10-12. Accordingly, on March 16, 

2007, Judicial Watch brought suit in this Court seeking to compel the defendant agencies 

to produce the records requested and to pay all attorney's fees and costs. CompI. at 5-6. 

On June 15,2007, the Executive Office for United States Attorneys (the 

"EOUSA"), a component ofDOJ, informed plaintiff that it was withholding records 

pursuant to FOIA Exemptions 6 and 7(C) and Privacy Act Exemption U)(2). Def. 's 

Statement of Mat. Facts ("Def.'s Stat.") ~ 10. On November 9,2007, plaintiff filed a 

motion for partial summary judgment asking this Court to order DOJ to search for and 

produce all non-exempt responsive records and to create a Vaughn index of all exempt 

records. DO] filed a cross-motion for summary judgment on March 21, 2008, asserting 

that it could withhold the documents under FOIA Exemptions 6 and 7(C). Defendant 

argued that it did not need to conduct a document-by-document review because any law 

enforcement record mentioning Aldrete-Davila would be categorically exempt from 

disclosure, claiming that the privacy interest in the types of documents requested by 

Judicial Watch typically outweighed the public interest in their release. On February 25, 

2009, the Court granted plaintiffs motion and denied defendant's cross-motion. See 

Judicial Watch, Inc. v. Us. Dep't of Homeland Sec., 598 F. Supp. 2d 93, 94 (D.D.C. 

2009). The Court ordered defendant to search for and produce any non-exempt 

responsive records and to compile a Vaughn index for all exempt records. See id. 

On August 24, 2009, the EOUSA made a supplemental release of four pages of 

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material, consisting of public information pertaining to Aldrete-Davila. Def.'s Stat. , 12. 

The EOUSA withheld in full thirty-five pages of material pursuant to FOIA Exemptions 

2,5,6, and 7(C), 5 U.S.C. §§ 522(b)(2), (b)(5), (b)(6), & (b)(7)(C), as well as Privacy 

Act Exemption U)(2), 5 U.S.C. §522aU)(2). See id.; Def.'s Ex. I. On November 4,2009, 

DOl, on behalf of the EOUSA, filed a Renewed Motion for Summary Judgment. 

Plaintiff filed a Cross-Motion for Partial Summary Judgment on December 7, 2009. 

ANALYSIS 

I. Standard of Review 

Summary judgment shall be granted when the record demonstrates "that there is 

no genuine issue as to any material fact and that the movant is entitled to judgment as a 

matter oflaw." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 

322 (1986) ( citing same). In a FOIA case, an agency bears the burden of establishing that 

the search was adequate and that each responsive document is either produced, 

unidentifiable, or exempt from production. See Weisberg v. Us. Dep 't of Justice, 627 

F.2d 365,368 (D.C. Cir. 1980). In this case, Judicial Watch does not contest the 

adequacy ofDOrs search for responsive documents or the applicability of Exemption 2, 

as asserted by DOJ with respect to portions of withheld documents. Plaintiff does, 

however, dispute the applicability ofFOIA Exemptions 5, 6, and 7(C), and Privacy Act 

Exemption U)(2), as asserted by defendant. 

The Court's review of an agency's justification for non-disclosure is de novo, see 

5 U.S.C. § 552(a)(4)(B), but the Court "may rely on affidavits or declarations submitted 

by the agency, if those documents describe 'the justifications for non-disclosure with 

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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. '" Suzhou Yuanda Enter., Co. v. u.s. 

Customs & Border Prot., 404 F. Supp. 2d 9, 12 (D.D.C. 2005) (quoting Military Audit 

Project v. Casey, 656 F.2d 724,738 (D.C. Cir. 1981». Here, DOJ submitted a Vaughn 

index with their Renewed Motion for Summary Judgment, see Def.'s Mot. Attach. 1, and 

a revised Vaughn index with their Opposition to plaintiffs Cross-Motion for Summary 

Judgment, see Def.'s Opp'n Ex. A (hereinafter, "Vaughn Index"), the latter of which is 

referenced in this Opinion. DOJ also submitted three declarations detailing its search for 

responsive documents and providing further explanations for its decision to withhold 

certain documents. See Def.'s Mot. Attach. 3, Finnegan Decl., Nov. 2, 2009; Def.'s Mot. 

Attach. 4, Durbin Decl., Oct. 26, 2009; Def.'s Mot. Attach. 5, Swain Decl., Aug. 21, 

2009. For the following reasons, I find there are no genuine issues of material fact as to 

the validity of defendant's application of the exemptions in this case. 

II. FOIA Exemption 5 

FOIA Exemption 5 exempts from disclosure "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). For a document to qualify 

for this exemption, "it must fall within the ambit of a privilege against discovery under 

judicial standards that would govern litigation against the agency that holds it." Dep 't of 

the Interior v. Klamath Water Users Protective Ass 'n, 532 U.S. 1,8 (2001). Courts have 

incorporated civil discovery privileges into this exemption, such as attorney work4 
product, attorney-client privilege, and what is called the "deliberative process" privilege. 

See Nat 'I Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975); 

Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). In this 

case, the defendant asserts the deliberative process privilege for documents 4-9, 11-28, 

30, 44, 46, and 51; the attorney-client privilege in conjunction with the deliberative 

process privilege for document 32; and attorney work-product in conjunction with the 

deliberative process privilege for documents 1,3,45,47-49, and 52-54. 2 See Def.'s Mot. 

16-17. 

A. Deliberative Process Privilege 

The deliberative process privilege exempts from disclosure those documents that 

contain deliberations comprising part of a process by which governmental decisions and 

policies are made. See Klamath, 532 U.S. at 8. The purpose of the deliberative process 

privilege is to protect the decision-making process of government agencies and to 

encourage '''the frank discussion of legal and policy issues' by ensuring that agencies are 

not 'forced to operate in a fishbowl.'" Mapother v. Dep't of Justice, 3 F.3d 1533,1537 

(D.C. Cir. 1993) (quoting Wolfe v. Dep 't of Health & Human Servs., 839 F.2d 768, 773 

(D.C. Cir. 1988) (en banc)). Advice, recommendations, and opinions that are part of the 

decision-making process are protected from disclosure as long as they are 

"predecisional." See Sears, 421 U.S. at 151-53. Thus, "[ d]ocuments which are protected 

by the privilege are those which would inaccurately reflect or prematurely disclose the 

2 Judicial Watch does not contest the withholding of document 46, which is marked as 

"non-responsive" in the Vaughn Index. 

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views of the agency, suggesting as agency position that which is as yet only a personal 

position." Coastal States, 617 F.2d at 866. Accordingly, "communications made after 

the decision and designed to explain it" are not covered by this privilege. Sears, 421 U.S. 

at 152. 

Here, DO] asserts the deliberative process privilege over email messages 

involving recommendations and evaluations for how to respond to Congressional and 

media requests for information on Aldrete-Davila's legal entry into the United States and 

the grant of immunity to him. See Finnegan Decl. ~~ 30-31. These email messages were 

both intra-agency communications among employees of the U.S. Attorneys Offices 

("USAOs") and inter-agency email messages among employees of USA Os, DOl's 

Offices of Public Affairs and Legislative Affairs, and DHS's Office of the Inspector 

General ("OIG") and the Bureau of Customs and Border Protection. Id. 

The emails discussing the grant of immunity to Aldrete-Davila are from 2006 and 

later. See Vaughn Index Doc. Nos. 6, 13-17. Plaintiff argues that because they post-date 

the original grant of immunity in 2005, they cannot be pre-decisional. See PI.' s CrossMot. 7. However, DO] indicates that these documents contain discussions of how to 

respond to inquiries from the press and Congress. See Finnegan Decl. ~ 31. More 

specifically, Aldrete-Davila was captured for smuggling drugs subsequent to the RamosCompean trial, giving rise to the question whether his original grant of immunity would 

apply. See Def.'s Opp'n 4. Because the handling of Aldrete-Davila's case was 

controversial, it is understandable that, as the defendant asserts, numerous discussions 

involving the controversy took place and required multiple decisions. Furthermore, 

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because these documents are generated as part of a continuous process of agency decision 

making, viz., how to respond to on-going inquiries, they are pre-decisional and, given 

their deliberative nature, I find they were properly withheld under Exemption 5. See 

Access Reports v. Dep 't of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991) (recognizing 

that smaller policy decisions may make up major policy positions); see also Citizens for 

Responsibility & Ethics in Wash. v. Us. Dep't of Homeland Sec., 514 F. Supp. 2d 36, 45 

(D.D.C. 2007) (finding agency's declaration that the withheld materials concerned 

deliberations regarding on-going response to Hurricane Katrina to be sufficient 

identification of deliberative process involved); Citizens for Responsibility & Ethics in 

Wash. v. Us. Dep 't of Labor, 478 F. Supp. 2d 77, 83 (D.D.C. 2007) (finding discussions 

regarding how to respond to a media report commenting on agency's policies was 

predecisional and deliberative). 

Similarly, although the emails discussing Aldrete-Davila's legal entry into the 

United States post-date Aldrete-Davila's incarceration in February 2006, see Vaughn 

Index Doc. Nos. 4-5, 7-9,11-12,18-23,44,51, these documents discuss how to respond 

to on-going inquiries from the press and Congress regarding Aldrete-Davila's mUltiple 

entries into the United States. See Finnegan Decl. ~ 31; Def.'s Opp'n 5. DO] also 

indicated that it withheld Documents 24-28 and 30, which contained consultations with 

DHS OIG, because they contained deliberations among government personnel for how to 

respond to Congressional and media inquiries related to the investigation and prosecution 

of Ramos and Compean. See Finnegan Decl. ~ 31. Again, Plaintiffs chronological 

argument that these documents cannot be pre-decisional is unconvincing given the 

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complexity surrounding the defendant's handling of the entire Aldrete-Davila situation. 

In addition, I agree with defendant's assertion that disclosure of this information is likely 

to interfere with the candor necessary for open and frank discussions regarding the 

preferred course of action in responding to these inquiries. See Coastal States, 617 F.2d 

at 866. Accordingly, I uphold the defendant's classification of the documents as subject 

to the deliberative process privilege and therefore exempt from disclosure under 

Exemption 5. 

B. Attorney-Client Privilege 

The attorney-client privilege encompasses "confidential communications between 

an attorney and his client relating to a legal matter for which the client has sought 

professional advice." Mead Data Cent., Inc. v. u.s. Dep't of Air Force, 566 F.2d 242, 

252 (D.C. Cir. 1977). "Its purpose is to assure that a client's confidences to his or her 

attorney will be protected, and therefore encourage clients to be as open and honest as 

possible with attorneys." Coastal States, 617 F.2d at 862. In this case, defendant asserts 

the attorney-client privilege, in conjunction with the deliberative process privilege, over 

Document 32, which consists of email messages from a DHS special agent to a DHS OIG 

attorney seeking confidential legal advice regarding the way in which Aldrete-Davila 

entered into the United States. See Finnegan Dec!. ~ 32; Vaughn Index Doc. No. 32. 

Because such communications clearly fall within the protection of the attorney-client 

privilege, I find that this document was properly exempted from disclosure. 

C. Attorney Work-Product 

The attorney work-product privilege protects disclosure of materials prepared by 

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attorneys, or non-attorneys supervised by attorneys, in contemplation of litigation, that 

reveal information about an attorney's preparation and strategy relating to a client's case. 

See Coastal States, 617 F.2d at 866. This privilege aims to protect the adversary trial 

process by providing attorneys a '''zone of privacy' within which to think, plan, weigh 

facts and evidence, candidly evaluate a client's case, and prepare legal theories." Id. at 

864. Here, defendant invokes the attorney work-product privilege, in conjunction with 

the deliberative process privilege, over records that were "prepared by or at the request or 

direction of an AUSA, in anticipation of or during litigation." See Finnegan Decl. ~ 33. 

DO] attests that these records reflect trial preparation, trial strategy, interpretations, and 

personal evaluations and opinions in connection with the criminal prosecution of Ramos 

and Compean. See id. More specifically, the records include evaluations and 

interpretations regarding the extent of Aldrete-Davila's immunity in connection with 

prosecution of Ramos and Compean; draft court papers and a prosecution memorandum; 

and deliberations regarding how to respond to media inquiries, including discussion of 

witness credibility and biases, attorney opinions on Aldrete-Davila's entry into the United 

States, and the extent of his immunity, in connection to the prosecution of Ramos and 

Compean. See Vaughn Index Doc Nos. 1,3,45,47-49, 52-54. 

It is clear that most of these documents clearly fall within the realm of attorney 

work-product, as they involve the details of an AUSA's preparation for a criminal 

prosecution. See Coastal States, 617 F.2d at 864. Perhaps plaintiffs strongest argument 

against DOJ's assertion of the attorney work-product privilege is that Documents 52-54 

are email messages that were sent after the conclusion of the Ramos-Compean 

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prosecution. See PI.'s Reply 6. As such, Judicial Watch argues that these documents 

could not have been prepared in anticipation of or during that litigation. See id. 

However, defendant's Vaughn Index indicates that although the discussions of how to 

respond to media and Congressional requests in Documents 52-54 did occur subsequent 

to the trial, those discussions involved "deliberations prior" in connection with the 

Ramos-Compean prosecution. Vaughn Index Docs. 52-54. In other words, Documents 

52-54 contained internal deliberations that included consideration of privileged attorney 

work-product from the prior prosecution. See Finnegan DecI. ,-r 33. Thus, I agree that 

these documents were exempted from disclosure under the attorney work-product 

privilege in conjunction with the deliberative process privilege. Accordingly, I find that 

the DOJ properly applied Exemption 5 to the documents at issue in this case. 

II. FOIA Exemption 7(C)3 

FOIA Exemption 7(C) exempts from disclosure "records or information compiled 

for law enforcement purposes, but only to the extent that the production of such law 

enforcement records or information ... could reasonably be expected to constitute an 

unwarranted invasion of personal privacy." 5 U.S.c. § 552(b)(7)(C). In determining 

whether this exemption applies to particular material, the Court must balance the interest 

in privacy of the individuals mentioned in the records against the public interest in 

disclosure. See us. Dep 't of Justice v. Reporters Comm. for Freedom of the Press, 489 

3 The DO] cited Exemption 6 in conjunction with Exemption 7(C). See Def.'s Mot. 28. 

Because the Court finds that the defendant properly asserted Exemption 7(C) over the withheld 

information, it need not determine whether that same information is protected under Exemption 

6. See Singh v. Fed. Bureau of Investigation, 574 F. Supp. 2d 32, 47 n.4 (D.D.C. 2008). 

Similarly, the Court also need not consider the applicability of the Privacy Act to this case. 

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u.s. 749, 763 (1989). "[T]he only public interest relevant for purposes of Exemption 

7(C) is one that focuses on 'the citizens' right to be informed about what their 

government is up to.'" Davis v. u.s. Dep 't of Justice, 968 F.2d 1276, 1282 (D.C. Cir. 

1992) (quoting Reporters Comm., 489 U.S. at 773). The public interest "sought to be 

advanced [must be] a significant oneL] more specific than having the information for 

[one's] own sake." Nat'/ Archives & Records Admin. v. Favish, 541 U.S. 157, 172 

(2004). 

In this case, defendant asserts Exemption 7(C) over the information contained in 

documents that fall into four categories: (1) personal information pertaining to AldreteDavila, see Vaughn Index Doc Nos. 1,3-10,12-23,36,44,50; (2) names and identifying 

data of federal law enforcement and support personnel, see id. Doc. Nos. 24-35, 40, 43, 

45-46, 51; (3) names and/or identifying information pertaining to third parties merely 

mentioned, see id. Doc Nos. 36, 38-41,46; and (4) names and/or identifying information 

pertaining to third parties of investigative interest to the Government, see id. Doc. Nos. 

34,47-49, 51-53. These records "were all compiled during the conduct of a criminal 

investigation and prosecution by the DHS OIG and the USAO," Finnegan Decl. ~ 36, and 

it is undisputed that they meet the threshold for Exemption 7(C). Furthermore, I find that 

the defendant properly evaluated the privacy interest inherent in each piece of withheld 

information against the public interest in shedding light on DOJ's performance of its 

statutory duties as required by Exemption 7(C). How so? 

As to the personal information pertaining to Aldrete-Davila, the defendant has 

identified a strong privacy interest in non-public details pertaining to the grant of 

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immunity given to him as a government witness, as well as non-public details of his entry 

into the United States in the context of a government prosecution. See Finnegan Decl. 

~ 38. I agree with the DOl that releasing these previously undisclosed details could 

reasonably be expected to result in stigmatizing public attention and embarrassment by 

engendering comment and speculation about Aldrete-Davila. See Finnegan Decl. ~ 41; 

see also The Nation Magazine v. Us. Customs Serv., 71 F.3d 885, 894 (D.C. Cir. 1995) 

(stating that witnesses and informants who provided information during the course of an 

investigation have an "obvious privacy interest cognizable under Exemption 7(C)"); 

Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755, 767 (D.C. Cir. 1990) ("It is surely 

beyond dispute that the mention of an individual's name in a law enforcement file will 

engender comment and speculation and carries a stigmatizing connotation.") (internal 

quotation marks omitted). Despite Judicial Watch's argument to the contrary, the fact 

that Aldrete-Davila has been mentioned in previously disclosed law enforcement records 

and published reports does not obviate all of his rights to privacy. See Fitzgibbon, 911 

F.2d at 767 (citing Reporters Comm., 489 U.S. at 762-64); Bast v. Us. Dep't of Justice, 

665 F.2d 1251, 1255 (D.C. Cir. 1981). Furthermore, the Court agrees with defendant that 

the passage of time has not diluted the privacy interest at stake and, if anything, has 

actually increased his privacy interest as the events surrounding the Ramos-Compean 

prosecution have faded from memory. See Finnegan Decl. ~ 39. 

Conversely, plaintiff has failed to identify a sufficient public interest in disclosure 

of Aldrete-Davila's personal information that would outweigh his privacy interests. 

Indeed, Judicial Watch has made no showing of a "significant" public interest as is 

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required, see Favish, 541 U.S. at 172, only obliquely asserting that the information 

sought would "open[] up government action to the light of public scrutiny." P!.'s CrossMot. 15. Plaintiff has not alleged any government misconduct in the Ramos-Compean 

prosecution nor identified any other significant reason to disclose Aldrete-Davila's 

personal information. See Safe Card Servs., Inc. v. Sec. Exchange Comm'n, 926 F.2d 

1197, 1206 (D.C. Cir. 1991). Therefore, as to that category of information, I find that 

disclosure would constitute an unwarranted invasion of personal privacy and thus that 

defendant properly applied Exemption 7(C) to the withheld information. 

As to the second category of information, the names and identifYing data of 

federal law enforcement and support personnel, defendant asserts that release of this 

information "may seriously impair their effectiveness in conducting future 

investigations," "could trigger hostility towards" these individuals, and could cause them 

to become "targets of harassing inquiries for unauthorized access to investigative 

information." Finnegan Dec!. ,-r,-r 45-46. I agree. It is well-established that information 

identifYing law enforcement and support personnel can be withheld pursuant to 

Exemption 7(C). See Amuso v. Us. Dep 't of Justice, 600 F. Supp. 2d 78, 96 (D.D.C. 

2009); Singh, 574 F. Supp. 2d at 49. Once again, Judicial Watch has not asserted a 

significant public interest that would be served in the disclosure of this information. 

Therefore, DOJ properly asserted Exemption 7(C) over this information as well. 

As to the final two categories of information, which pertain to third parties either 

merely mentioned or of investigative interest to the government, the privacy interests at 

stake are substantial. For third parties merely mentioned, I agree with the DOJ that "[t]he 

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mention of their names in the context of a federal criminal investigation could cast them 

in an unfavorable or negative light if released to the public." Finnegan Decl. ~ 47. For 

third parties who were of investigative interest, I also agree with defendant that "[t]o 

release the identity of these individuals to the public as a subject or suspect of a criminal 

investigation could subject them to harassment or embarrassment, as well as undue public 

attention." Jd. ~ 49. Furthermore, releasing this information serves no public interest 

because these email addresses would not reveal agency conduct. See Nation Magazine, 

71 F.3d at 894 (quoting Reporters Comm., 489 U.S. at 773). To the contrary, release of 

the withheld information would constitute a clearly unwarranted invasion of privacy of 

private citizens. See Amuso, 600 F. Supp. 2d at 96; Singh, 574 F. Supp. 2d at 49. Thus, 

the DOJ also properly withheld this information under Exemption 7(C). Finally, the 

Court finds that all reasonably segregable, non-exempt material was provided to Judicial 

Watch. See Finnegan Decl. ~ 57. 

CONCLUSION 

For all of the foregoing reasons, defendant's Renewed Motion for Summary 

Judgment is GRANTED, and plaintiffs Cross-Motion for Partial Summary Judgment is 

DENIED. An Order consistent with this decision accompanies this Memorandum 

Opinion. 

United States District Judge 

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