### UNITED STATESDISTRICT COURT FORTHE DISTRICT OFCOLUMBIA JUDICIALWATCH, INC., ) ) ) ) 

### Plaintiff,



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

### U.S. DEPARTMENT OFHOMELAND SECURITY

### etal., ) ) ) 

# tA-- ) 

### Defendants. MEMORANDUM OPINION (September ",-,2010) [#55, #59] PlaintiffJudicial Watch, Inc. ("Judicial Watch") filed this Freedom ofInformation Act ("FOIA") lawsuit against the U.S. Department ofHomeland Security ("DHS"), the U.S. Department ofJustice ("DOJ" or "defendant"), and the U.S. Department ofState ("State Department). 1 Beforethe Court are plaintiffs and DOl's cross-motions for summaryjudgment. Upon review ofthe 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 certainrecords concerning Osbaldo Aldrete-Davila ("Aldrete-Davila"),

aMexican national who testified for the Government in the prosecution oftwo border patrol agents, Ignacio Ramos ("Ramos") and Jose Alonso Compean ("Compean").

The parties stipulated to dismissal ofthe claims against the State Department and DHS. See Joint Stip. ofPartial Dismissal, Oct. 26, 2007 [#22]; Joint Stip. ofPartial Dismissal, May 20, 2008 [#41]. 1CompI.**~~** 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 thattime 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, informedplaintiffthat it was withholding records pursuantto FOIA Exemptions 6 and 7(C) and Privacy ActExemption U)(2). Def.'s Statement ofMat. Facts ("Def.'s Stat.")**~** 10. On November 9,2007, plaintifffiled a motion for partial summaryjudgment asking this Court to order DOJ to search for and produce all non-exempt responsive records and to create a Vaughn index ofall exempt records. DO] filed a cross-motion for summaryjudgmenton March 21, 2008, asserting that it couldwithhold the documents underFOIAExemptions 6 and 7(C). Defendant argued that itdid 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 ofdocuments requested by Judicial Watch typically outweighed the public interest in theirrelease. On February 25, 2009, the Court granted plaintiffs motion and denied defendant's cross-motion. See Judicial Watch, Inc. v. Us. Dep'tof HomelandSec., 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 exemptrecords. See id. On August 24, 2009, the EOUSA made a supplemental release offour pages of


### 2material, consisting ofpublic information pertaining to Aldrete-Davila. Def.'s Stat. , 12. The EOUSAwithheld in full thirty-five pages ofmaterial pursuant to FOIAExemptions 2,5,6, and 7(C), 5U.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 November4,2009, 

### DOl, on behalfofthe EOUSA, filed a Renewed Motion for Summary Judgment. Plaintifffiled a Cross-Motion for Partial Summary Judgment on December 7, 2009. ANALYSIS I. Standard ofReview Summaryjudgment shall be granted when the record demonstrates "thatthere is

no genuine issue as to any material fact and thatthe movant is entitled tojudgment 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 ofestablishing 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 contestthe adequacy ofDOrs search for responsive documents orthe applicability ofExemption 2,

as asserted by DOJ with respect to portions ofwithheld documents. Plaintiffdoes, however, dispute the applicability ofFOIAExemptions 5, 6, and 7(C), and Privacy Act Exemption U)(2), as asserted by defendant. The Court'sreview ofan agency'sjustification for non-disclosure is de novo, see 5U.S.C. § 552(a)(4)(B), butthe Court "mayrely on affidavits or declarations submitted by the agency, ifthose documents describe 'thejustifications for non-disclosure with

3reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controvertedby either contrary evidence in the record norby evidence ofagency bad faith.'" Suzhou Yuanda Enter., Co. v. 

# u.s. Customs & BorderProt., 404 F. Supp. 2d 9, 12 (D.D.C. 2005) (quotingMilitaryAudit 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'nEx. A (hereinafter, "Vaughn Index"), the latter ofwhich 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. Forthe following reasons, I find there are no genuine issues ofmaterial fact as to the validity ofdefendant's application ofthe 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 otherthan an agency in litigation with the agency." 5 U.S.c. § 552(b)(5). For a document to qualify for this exemption, "itmust fall within the ambit ofaprivilege against discovery under judicial standards that would govern litigation againstthe agency that holds it." Dep 'tof the Interior v. Klamath Water Users ProtectiveAss 'n, 532 U.S. 1,8 (2001). Courts have incorporated civil discovery privileges into this exemption, such as attorney work4product, attorney-client privilege, andwhat is called the "deliberativeprocess"privilege. SeeNat 'ILaborRelationsBd. v. Sears, Roebuck & Co., 421 U.S. 132, 148-49 (1975); CoastalStates Gas Corp. v. Dep'tof 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-clientprivilege 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 comprisingpart ofaprocess by which governmental decisions and policies are made. See Klamath, 532 U.S. at 8. The purpose ofthe deliberative process privilege is toprotectthe decision-makingprocess ofgovernment agencies and to encourage '''the frank discussion oflegal and policy issues' by ensuring that agencies are not 'forcedto operate in a fishbowl.'" Mapother v. Dep'tof 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 ofthe decision-makingprocess 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 inaccuratelyreflect orprematurely disclose the

2 Judicial Watch does not contest the withholding ofdocument46, which is marked as "non-responsive" in the Vaughn Index. 

### 5views ofthe agency, suggesting as agency position that which is as yet only apersonal position." CoastalStates, 617 F.2d at 866. Accordingly, "communications made after the decision and designed to explain it" are not coveredby this privilege. Sears, 421 U.S. at 152.Here, DO] asserts the deliberative process privilege overemail messages involving recommendations and evaluations for how to respond to Congressional and mediarequests for information on Aldrete-Davila's legal entry into the United States and the grant ofimmunity to him. See Finnegan Decl.**~~** 30-31. These email messages were both intra-agency communications among employees ofthe U.S. Attorneys Offices ("USAOs") and inter-agency email messages among employees ofUSAOs, DOl's Offices ofPublic Affairs and Legislative Affairs, and DHS's Office ofthe Inspector General ("OIG") and the Bureau ofCustoms and BorderProtection. Id. The emails discussing the grant ofimmunity to Aldrete-Davila are from 2006 and later. See Vaughn Index Doc. Nos. 6, 13-17. Plaintiffargues that because theypost-date the original grant ofimmunity in 2005, they cannotbe pre-decisional. See PI.'s CrossMot. 7. However, DO] indicates that these documents contain discussions ofhow 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 ofimmunity would apply. See Def.'s Opp'n4. Because the handling ofAldrete-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,

6becausethese documents are generated as part ofa continuous process ofagency 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 AccessReports v. Dep 't of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991) (recognizing that smallerpolicy decisions may make up majorpolicy positions); see also Citizensfor Responsibility 

### &Ethics in Wash. v. 

### Us. Dep'tof HomelandSec., 514 F. Supp. 2d 36, 45 (D.D.C. 2007) (finding agency's declaration thatthe withheld materials concerned deliberations regarding on-goingresponse to Hurricane Katrinato be sufficient identification ofdeliberative process involved); Citizensfor 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 mediareport 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 governmentpersonnel for how to respond to Congressional and media inquiries related to the investigation and prosecution ofRamos and Compean. See Finnegan Decl.**~** 31. Again, Plaintiffs chronological argumentthatthese documents cannotbe pre-decisional is unconvincing given the


### 7complexity surrounding the defendant's handling ofthe entire Aldrete-Davila situation. In addition, I agree with defendant's assertion that disclosure ofthis information is likely to interfere with the candornecessary for open and frank discussions regardingthe preferred course ofaction in respondingto these inquiries. See CoastalStates, 617 F.2d at 866. Accordingly, Iuphold the defendant's classification ofthe documents as subject to the deliberative process privilege and therefore exempt from disclosure under Exemption 5. 

### B. Attorney-Client Privilege The attorney-clientprivilege encompasses "confidential communications between

an attorney and his clientrelating to a legal matter for which the client has sought professional advice." MeadData Cent., Inc. v. 

# u.s. Dep'tof AirForce, 566 F.2d 242, 252 (D.C. Cir. 1977). "Its purpose is to assure that a client's confidences to his orher 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 ofemail 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 ofthe attorney-client privilege, I find that this document was properly exempted from disclosure. 

### C. Attorney Work-Product The attorney work-product privilege protects disclosure ofmaterials prepared by
8attorneys, ornon-attorneys supervised by attorneys, in contemplation oflitigation, that reveal information about an attorney'spreparation and strategyrelating to a client's case. See Coastal States, 617 F.2d at 866. This privilege aims to protectthe adversary trial process by providing attorneys a '''zone ofprivacy' 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-productprivilege, in conjunctionwith the deliberative process privilege, overrecords thatwere "preparedby or atthe request or direction ofan AUSA, in anticipation oforduring 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 ofRamos and Compean. See id. More specifically, the records include evaluations and interpretations regarding the extent ofAldrete-Davila's immunity in connection with prosecution ofRamos and Compean; draft courtpapers and a prosecution memorandum; and deliberations regarding howto 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 ofhis immunity, in connection to the prosecution ofRamos and Compean. See Vaughn Index Doc Nos. 1,3,45,47-49, 52-54. Itis clearthat most ofthese documents clearly fall within the realm ofattorney work-product, as they involve the details ofan AUSA's preparation for a criminal prosecution. See CoastalStates, 617 F.2d at 864. Perhaps plaintiffs strongest argument againstDOJ's assertion ofthe attorney work-productprivilege is that Documents 52-54

are email messages thatwere sent afterthe conclusion ofthe Ramos-Compean

9prosecution. See PI.'s Reply 6. As such, Judicial Watch argues that these documents could not have been prepared in anticipation ofor during that litigation. See id. However, defendant's Vaughn Index indicates that although the discussions ofhowto respond to media and Congressional requests in Documents 52-54 did occur subsequent to the trial, those discussions involved "deliberationsprior" in connection with the Ramos-Compean prosecution. Vaughn Index Docs. 52-54. In other words, Documents 52-54 contained internal deliberations that included consideration ofprivileged attorney work-product from the priorprosecution. See Finnegan DecI. 

### ,-r 33. Thus, I agree that these documents were exempted from disclosure underthe attorney work-product privilege in conjunction with the deliberative processprivilege. Accordingly, I find that the DOJproperly applied Exemption 5 to the documents at issue in this case. II. FOIA Exemption 7(C)3 FOIAExemption 7(C) exempts from disclosure "records or information compiled for law enforcementpurposes, but only to the extentthattheproduction ofsuch law enforcementrecords or information

... could reasonably be expectedto constitute an unwarranted invasion ofpersonal privacy." 5 U.S.c. § 552(b)(7)(C). In determining whetherthis exemption applies to particularmaterial, the Court must balance the interest in privacy ofthe individuals mentioned in the records againstthe public interest in disclosure. See 

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

3 The DO] cited Exemption 6in 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 ofthe Privacy Actto this case. 

### 10

## u.s. 749, 763 (1989). "[T]he only public interestrelevant for purposes ofExemption 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) (quotingReporters 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 & RecordsAdmin. v. Favish, 541 U.S. 157, 172 (2004). In this case, defendant asserts Exemption 7(C) overthe 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 offederal law enforcement and supportpersonnel, see id. Doc. Nos. 24-35, 40, 43, 45-46, 51; (3) names and/or identifying information pertainingto third parties merely mentioned, see id. Doc Nos. 36, 38-41,46; and (4) names and/or identifying information pertaining to third parties ofinvestigative interest to the Government, see id. Doc. Nos. 34,47-49, 51-53. These records "were all compiled during the conduct ofa criminal investigation andprosecution by the DHS OIG and the USAO," Finnegan Decl.**~** 36, and it is undisputed thatthey meet the threshold for Exemption 7(C). Furthermore, I find that the defendant properly evaluated the privacy interest inherent in each piece ofwithheld information against the public interest in shedding light on DOJ'sperformance ofits statutory duties as required by Exemption 7(C). How so? As to the personal information pertaining to Aldrete-Davila, the defendant has identified a strongprivacy interest in non-public details pertainingto the grant of

11immunity given to him as a governmentwitness, as well as non-public details ofhis entry intothe United States in the context ofa governmentprosecution. See Finnegan Decl.**~** 38. I agree with the DOlthat releasing these previously undisclosed details could reasonably be expected to result in stigmatizingpublic 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 ofan investigation have an "obvious privacy interest cognizable under Exemption 7(C)"); Fitzgibbon v. Cent. IntelligenceAgency, 911 F.2d 755, 767 (D.C. Cir. 1990) ("It is surely beyond dispute that the mention ofan 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 enforcementrecords andpublishedreports does not obviate all ofhis rights to privacy. See Fitzgibbon, 911 F.2d at 767 (citingReporters Comm., 489 U.S. at 762-64); Bastv. Us. Dep'tof Justice, 665 F.2d 1251, 1255 (D.C. Cir. 1981). Furthermore, the Court agrees with defendant that the passage oftime has not diluted the privacy interest at stake and, ifanything, has actually increased his privacy interest as the events surrounding the Ramos-Compean prosecution have faded from memory. See Finnegan Decl.**~** 39. Conversely, plaintiffhas failed to identify a sufficientpublic interest in disclosure ofAldrete-Davila's personal information that would outweigh his privacy interests. Indeed, Judicial Watch has made no showing ofa "significant" public interest as is

12required, see Favish, 541 U.S. at 172, only obliquely asserting that the information sought would "open[] up government action to the light ofpublic scrutiny." P!.'s CrossMot. 15. Plaintiffhas not alleged any government misconduct in the Ramos-Compean prosecution nor identified any other significant reason to disclose Aldrete-Davila's personal information. See SafeCardServs., Inc. v. Sec. Exchange Comm'n, 926 F.2d 1197, 1206 (D.C. Cir. 1991). Therefore, as to that category ofinformation, I find that disclosure would constitute an unwarranted invasion ofpersonal privacy andthus that defendantproperly applied Exemption 7(C) to the withheld information. As to the second category ofinformation, the names and identifYing data of federal law enforcement and supportpersonnel, defendant asserts that release ofthis information "may seriously impairtheir effectiveness in conducting future investigations," "couldtrigger hostility towards" these individuals, and could cause them to become "targets ofharassing inquiries for unauthorized access to investigative information." Finnegan Dec!. ,-r,-r45-46. 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 significantpublic interestthat would be served in the disclosure ofthis information. Therefore, DOJ properly asserted Exemption 7(C) overthis information as well. As to the final two categories ofinformation, which pertain to third parties either merely mentioned or ofinvestigative interest to the government, the privacy interests at stake are substantial. Forthirdparties merely mentioned, I agree with the DOJ that "[t]he
13mention oftheir names in the context ofa federal criminal investigation could cast them in an unfavorable or negative light ifreleased to the public." Finnegan Decl.**~** 47. For thirdparties who were ofinvestigative interest, I also agree with defendant that "[t]o release the identity ofthese individuals to the public as a subject or suspect ofa criminal investigation could subjectthem 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 (quotingReporters Comm., 489 U.S. at 773). To the contrary, release of the withheld information would constitute a clearly unwarranted invasion ofprivacy of private citizens. SeeAmuso, 600 F. Supp. 2d at 96; Singh, 574 F. Supp. 2d at 49. Thus, the DOJ also properly withheldthis information underExemption 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 ofthe 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 DistrictJudge

14