                          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.,                                      )
                                                       )
                        Defendants.                    )
                                                tA--
                                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].


                                                 1
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


                                             2
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


                                             3
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 work-


                                             4
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 ofJustice, 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.


                                              5
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 Cross-

Mot. 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 Ramos-

Compean 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,


                                              6
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 ofJustice, 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 ofHomeland 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


                                             7
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 ofAir 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


                                             8
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


                                               9
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 ofJustice 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.


                                              10
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 ofJustice, 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 Aldrete-

Davila, 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


                                              11
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


                                               12
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 Cross-

Mot. 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 ofJustice, 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


                                             13
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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