Bayala v. United States Department of Homeland Security

MOTION for Summary Judgment

D.D.C.August 26, 2016

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ FLORENT BAYALA Plaintiff, v. Civil Action No. 14-cv-007 (RC) UNITED STATES DEPARTMENT OF HOMELAND SECURITY Defendant, __________________________________ PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff Florent Bayala (“Mr. Bayala”) respectfully moves for summary judgment, pursuant to Fed. R. Civ. P. 56, because there are no genuine issues of fact, and because he is entitled to judgment as a matter of law. 5 U.S.C. § 552(a)(6)(A)(i) requires an agency to give its reasons “within 20 days” and to “immediately” inform the requester. This means the agency must give its reasons at the administrative level. It does not mean an agency is allowed to give its reasons only to those requesters who later file federal lawsuits. The fact that some courts allow tardy agency supplements does not negate the statute: the agency must give its reasons “within 20 days.” In his First Cause of Action, Mr. Bayala asserts that he made a FOIA request for three items, and that the DHS responded with a confusing and misleading letter. The letter stated that un-named documents were referred to the State Department and to ICE. The letter provided a “laundry list” of exemptions which do not apply. The letter did not Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 1 of 38 2 mention the “deliberative process” privilege. It did not state “the reasons” for the determination. He cannot make a meaningful administrative appeal. In his Second Cause of Action, Mr. Bayala asserts that the DHS response does not provide any reasons or facts for its conclusion that nothing is segregable. Three federal courts have determined that portions of asylum officer assessments are indeed segregable; the DHS must explain why it cannot segregate, while courts can. Because the DHS response concerning segregabililty contains no facts or reasons, Mr. Bayala is unable to make a meaningful administrative appeal. As demonstrated by the attached Statement of Material Facts not in Genuine Dispute and the following Memorandum of Points and Authorities, Mr. Bayala is entitled to judgment as a matter of law. Dated: August 26, 2016 Respectfully submitted, DAVID L. CLEVELAND Attorney for Plaintiff DC Bar # 424209 924 G Street, NW Washington, DC 20001 [202] 772-4345 Fax: [202] 386-7032 1949.david@gmail.com Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 2 of 38 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ FLORENT BAYALA Plaintiff, v. Civil Action No. 14-cv-007 (RC) UNITED STATES DEPARTMENT OF HOMELAND SECURITY Defendant, __________________________________ PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPPORT OF HIS MOTION FOR SUMMARY JUDGMENT Plaintiff’s comments on the November 4, 2014 Memorandum and Order of the Court On November 14, 2014, the Court issued a Memorandum and Order, ECF #24, granting the DHS motion to dismiss. The Court was influenced by the belief that Mr. Bayala had not exhausted his administrative remedies; but, the Court of Appeals has now ruled that Mr. Bayala need not do that. Mr. Bayala urges the Court to take a fresh look at the issues in this case. Mr. Bayala seeks much more than the reasons for withholding just one document Mr. Bayala seeks a court order for the DHS to re-issue its initial response in compliances with the statutory mandates. Mr. Bayala demands that the initial response state the reasons why : a] the assessment is allegedly exempt, and the reasons why nothing in it can be segregated out; b] the material used by the Asylum Officer but not Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 3 of 38 4 given to him Mr. Bayala is allegedly exempt and the reasons why nothing in it can be segregated out. Mr. Bayala seeks a ruling forbidding the giving of false reasons why a document is exempt, and a ruling that the DHS must describe any documents it refers elsewhere. Even if the agency amends its initial response in district court, the agency still has the duty to obey the mandates of the FOIA The Court stated at note 8, at page 5 of its Memorandum and Order, that “the initial agency determination’s depth and thoroughness are of little ultimate relevance.” The Court stated at page 7, that at the district court level, “DHS would not be bound by its initially cited exemptions at all. See Gula v. Meese,…” Mr. Bayala is concerned that agencies might read that language of the Court as license to just say anything to a FOIA requester. Mr. Bayala is concerned that an agency might respond by saying: “We withhold everything because of exemptions 1-9.” Congress imposed mandates on agencies for their initial responses. This Court should enforce those mandates, even if a district court later allows amendments. The vast majority of FOIA requests never go to district court. This Court should be aware of those requesters, as it considers this case. Mr. Bayala stated at ¶ 4 of the Complaint that “he wants to assist other asylum applicants see justice.” A ruling in his favor will indeed assist those others. Even if “the reasons” given by the DHS are “sufficient” for Mr. Bayala to file an administrative appeal, the agency must still follow the mandates of the FOIA. The Court stated at page 6 of its Memorandum and Order that “the cover letter’s ‘reasons’ were sufficient to require Bayala to file an administrative appeal.” Mr. Bayala Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 4 of 38 5 suggests that the proper test for the initial reasons is whether the reasons complied with the statute: 5 U.S.C. § 552(a)(6)(A)(i). 5 U.S.C. § 552(a)(6)(A)(i) requires an agency to give its reasons “within 20 days” and to “immediately” inform the requester. This means the agency must give its reasons at the administrative level. It does not mean an agency is allowed to give its reasons only to those requesters who file federal lawsuits. The fact that some courts allow tardy agency supplements does not negate the statute: the agency must give its reasons “within 20 days.” Congress has imposed duties upon the DHS in 5 U.S.C. § 552 (a)(6)(A)(i). 5 U.S.C. § 552(a) provides: “Each agency shall make available….” 5 U.S.C. § 552(a)(6)(A) provides: “Each agency, upon any request…shall-“ 5 U.S.C. § 552(a)(6)(A)(i) provides: [each agency shall] determine within 20 days… and shall immediately notify the person…the reasons therefor, and the right of such person to appeal…” The word “shall” is used three times in this portion of the statute. This shows that Congress was serious: it demands that the agency do things. The Court must enforce the thrice-repeated mandate of Congress. More duties are imposed by § 552(b): any reasonably segregable portions “shall be provided” to the requester. Congress knows the difference between “shall” and “may” as indicated by its use of the word “may” in 5 U.S.C. § 552(a)(4)(E)(i), which provides: “The court may assess against the United States reasonable attorney fees…” Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 5 of 38 6 When Congress uses “shall” in one part of a statute, and “may” in another, courts should apply the law as written: “shall” means “shall.” In Kingdomware Technologies v. U.S., 136 S. Ct. 1969, 1977 (2016), the Court considered 38 U.S.C. § 8127, which deals with contracts to businesses owned by veterans. Sub-section 8127(d) provides that a contracting officer “shall award contracts” to businesses owned by veterans, if certain conditions are met. In contrast, sub-section 1827(c) states that a contracting officer “may” award contracts, under different conditions. “When a statute distinguishes between ‘may’ and “shall,’ it generally clear that ‘shall’ imposes a mandatory duty.” Id. at 1977. We “must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984) The DHS has violated § 552(a) and also (b) by its issuance of the December 2013 letter. The Court should enforce the statute. The DHS did not give any reason why nothing can be segregated out of the assessment. In note 12, at page 6 of the Memorandum and Order, the Court states: “Thus, DHS’s conclusion that no portions of the withheld documents were reasonably segregable is the reason for its determination. Bayala incorrectly [asks for] the ‘reasons for its reasons.’’ Mr. Bayala respectfully requests the Court to reconsider. A conclusion is not a reason. “[A]gencies must be required to provide the reasons behind their conclusions in order that they may be challenged by FOIA plaintiffs and reviewed by the courts.” Mead Data Central v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977) If a document is “fully protected” under a doctrine, then segregability is not required. For example, “factual material is itself privileged when it appears within Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 6 of 38 7 documents that are attorney work product. If a document is fully protected as work product, then segregability is not required.” Judicial Watch v. Dep’t of Justice, 8432 F.3d 366, 371 (D.C. Cir. 2005). Does the DHS still claim that this doctrine applies to Mr. Bayala? Another reason why an agency could declare that nothing is segregable is because to try to segregate would yield only meaningless phrases, at great cost to the agency. Mead Data Central v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). If that is the reason why the DHS cannot segregate, the DHS should say so in its initial response. FACTS Mr. Bayala made a FOIA request for three items: notes of asylum officer, assessment, and “any material used by the Asylum Officer but not given to [the officer by the requester].” See Bayala v. U.S. Department of Homeland Security, ___F.3d ___, 2016 WL 3524098, at *1(D.C.Cir. 2016). See Exhibit 1, attached hereto. See Plaintiff’s Statement of Material Facts not in Genuine Dispute, ¶ 1. The DHS responded with a two-page letter, dated December 17, 2013, signed by Jill A. Eggleston. See Plaintiff’s Statement of Material Facts not in Genuine Dispute, ¶ 2. [“Pl’s Facts”] This letter, attached to the complaint and here as Exhibit 2, was described by the Court of Appeals as follows: -it “broadly asserted that all of the withheld documents” contained no segregable portions; it “provided a laundry list of ‘applicable exemptions….citing without further elaboration” four exemptions; “The Department did not specify which exemptions applied to which portions of which withheld pages or why;” -fourteen pages were referred to the State Department, and “document(s) were referred to Immigration and Customs Enforcement.” Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 7 of 38 8 Bayala v. U.S. Department of Homeland Security, ___F.3d ___, 2016 WL 3524098, at *1 (D.C.Cir. 2016). The fifth sentence of the December 2013 letter has these 19 words: “In our review of these pages, we have determined that they contain no reasonably segregable portion(s) of non-exempt information.” In December 2013, the DHS released 157 pages to Mr. Bayala. In those 157 pages were two copies of Mr. Bayala’s asylum application, and two copies of documents Mr. Bayala had furnished himself in support of his application. See Pl.’s Facts, ¶ 5. In those 157 pages, were some blank pages, and some computer printouts. Pl.’s Facts, ¶5. The 157 pages did NOT include the three items requested by Mr. Bayala: the notes, the assessment, and “any material used by the Asylum Officer but not given to [the officer by the requester].” Pl.’s Facts, ¶ 6. In other words, the DHS only gave to Mr. Bayala documents that were NOT requested. Mr. Bayala filed the complaint, and the DHS then released the asylum officer notes. Between September 2011 and April 2014, Jill A. Eggleston wrote at least 17 letters to other asylum applicants, who requested notes and assessments of their asylum officer. Copies of these letters are in the record as attachments to ECF #16-2. Each one contains the same boilerplate about Exemption (b)(5) and three other exemptions: “Exemption (b)(5)….may consist of documents containing pre-decisional information, documents or other memoranda prepared in contemplation of litigation, or confidential communications between attorney and client.” See Pl’s Facts, ¶ 8. Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 8 of 38 9 Not one of the 17 letters contains the word “assessment.” Not one of the 17 letters contains the phrase “deliberative process privilege.” Each one uses the exact same 19 words as the fifth sentence: “In our review of these pages, we have determined that they contain no reasonably segregable portion(s) of non-exempt information.” See Pl’s Facts, ¶ 9-11. Between July 2014 and September 2014, Jill A. Eggleston wrote at least 8 more letters to other asylum applicants, who requested notes and assessments of their asylum officer. Copies of these letters are in the record as attachments to ECF #22-1. See Pl’s Facts, ¶ 14. As of July 30, 2015, two federal courts had examined asylum officer assessments in camera, and each determined that portions were segregable: -Abtew v. DHS, 47 F. Supp. 3d 98, 114, (D.D.C. June 13, 2014) Judge Amy Jackson read an asylum assessment in camera and determined that the first six paragraphs were “easily segregated,” and therefore should be disclosed. -Gosen v. U.S. Citizenship and Immigration Services, 118 F. Supp. 3d 232, 243 (D.D.C. July 30, 2015) Judge Bates determined that some portions were reasonably segregable, after an in camera review. These two decisions had apparently no impact upon Jill Eggleston. Between July 2015 and May 2016, Jill A. Eggleston wrote at least five more letters to other asylum applicants, who requested notes and assessments of their asylum officer. See Pl’s Facts, ¶ 18. Ms. Eggleston, using the same 19 words in the fifth sentence of each letter, determined that nothing could be segregated. Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 9 of 38 10 Yet another federal court issued a decision, on April 6, 2016: Gatore v. Department of Homeland Security, 2016 WL 1367730, at *5 (D.D.C. April 6, 2016): Judge Walton noted that two other courts determined, after in camera review, that some portions of an assessment were indeed segregable: Gosen and in Abtew. “The Court is persuaded by Gosen and Abtew that there may be some portion of the assessments at issue in this case that contain factual information that may reasonably be segregated from the whole.” Despite these three decisions, Jill Eggleston wrote at least one more boilerplate letter, dated May 10, 2016. See Pl’s Facts, ¶ 21. That letter uses the same 19 words, in its fifth sentence, to say that nothing was segregable. Plaintiff has identified dozens of letters from Jill Eggleston, which all contain the same boilerplate. Ms. Eggleston has not yet explained why three judges can segregate, but she cannot. Ms. Eggleston has not yet claimed that the assessment for Mr. Bayala is any different from the assessments considered by the three judges. See Pl’s Facts, ¶ 22-25. THE SUMMARY JUDGMENT STANDARD At the summary judgment stage, the Court must regard the non-movant’s statements as true and make all inferences in the non-movant’s favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The facts in the complaint are presumed to be true, unless and until the defendant demonstrates to the contrary. Haynesworth v. Miller, 820 F.2d 1245, 1249, n.11 (D.C. Cir. 1987). The DHS has not denied any of the allegations in the complaint. Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 10 of 38 11 The DHS does not claim it gave “the reasons” to Mr. Bayala in December as to why the assessment was exempt; nor does it claim that it gave the reasons for its “zero segregability” conclusion. The DHS does not claim that Mr. Bayala could have made cogent and targeted arguments in an administrative appeal. THE FREEDOM OF INFORMATION ACT SHOULD BE CONSTRUED IN FAVOR OF THE REQUESTER “The Supreme Court has described the function of FOIA as serving “the citizens' right to be informed about what their government is up to.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotation marks and citation omitted).” Competitive Enterprise Institute v. Office of Science and Technology Policy, 2016 WL 3606 551, at *4 (D.C. Cir. 2016) (holding that a private email account is searchable). The Supreme Court has explained that FOIA’s exemptions are “explicitly made exclusive and must be narrowly construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (internal citations and quotation marks omitted). In determining whether the agency has met its burden, “the underlying facts are viewed in the light most favorable to the [FOIA] requester.” Weisberg v. DOJ, 705 F.2d 1344, 1350 (D.C. Cir. 1983). The agency bears the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n. 3 (1989). Unlike the review of other agency action, the FOIA “expressly places the burden on the agency to sustain its action.” Dep’t of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749, 755 (1989). The agency has the burden "to establish that the requested information is exempt." Fed. Open Mkt. Comm. of Fed. Reserve Sys. v.Merrill, 443 U.S. 340, 352 (1979) Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 11 of 38 12 The DHS has the burden to persuade the Court that it gave “the reasons” to the requester, and that it offered a “meaningful” appeal to the requester. All doubts as to compliance should be resolved in favor of the requester. This Court has broad equitable powers to effectuate the purposes of the FOIA. The Court should order the agency to re-write its December 2013 letter. The agency should advise Mr. Bayala of his right to an administrative appeal. Perhaps he will appeal; perhaps the administrative appeal will be fruitless; perhaps he will file another complaint. Or, perhaps not. The agency may give him what he wants, thereby obviating any further federal litigation. “The FOIA imposes no limits on courts’ equitable powers in enforcing its terms.”Payne Enterprises v. United States, 837 F.2d 486, 494 (D.C.Cir. 1988). The U.S. District Court has broad powers. It has the power “to do equity and to mould each decree to the necessities of the particular case.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946) [citations and quotations omitted]. It should “accord full justice to all the real parties in interest.” Id. “Only in that way can equity do complete rather than truncated justice.” Id. In Mead Data Central v. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir.1977), the Court stated, “We agree with Mead Data that the objective of the Vaughn requirements, to permit the requesting party to present its case effectively, is equally applicable to proceedings within the agency.” Accord: Webb v. Dep’t of Health and Human Services, 696 F.2d 101, 107, n. 47 (D.C. Cir. 1982). (A court is NOT precluded “from reviewing the procedures followed by an agency at the administrative level.”) An agency may not give “categorical” treatment to requesters Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 12 of 38 13 Each agency must carefully consider each request it receives, and give a good faith response to the requester. If an agency considers a group, or category, of requests, in exactly the same way, it suggests the agency did not properly review the requests. In the recently decided case of AILA v. EOIR, 2016 WL 4056405 (D.C. Cir. 2016), which involved complaints against immigration judges, the Court ruled that “the government’s across-the-board approach cannot be sustained in light of the variety of privacy and public interests that may be at stake in connection with the disclosure of an immigration judge’s name. We therefore remand for a more individualized inquiry into the propriety of redacting judges’ names.” Id. at *1. In the instant, the DHS has adopted an “across-the-board approach,” as indicated by its consistent use of identical, boilerplate letters. ARGUMENT I. The December 2013 letter violates the FOIA because it did not give “the” reasons for the determination. In his FOIA request, Mr. Bayala requested three groups of documents: 1] the notes of the asylum officer; 2] the Assessment; and 3] “any material used by the Asylum Officer but not given to him by the individual named above.” The DHS letter did not give the reasons why these documents were not furnished. 5 U.S.C. § 552(a)(6)(A)(i) requires an agency to give “the” reasons for its determination. This means the real reason. The real reason, apparently, why the DHS did not furnish the notes was because it was negligent and forgot that it had stipulated in a California court that it would release asylum officer notes. The real reason, apparently, why the DHS did not furnish the assessment was because of the “deliberative process privilege.” This phrase is not found in the DHS letter. Plaintiff does not know the real Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 13 of 38 14 reason why the DHS refuses to furnish “any [other] material used by” the asylum officer. To this date, the DHS has not explained its refusal. “The” means “the.” An agency must give “the” reasons for its refusal to disclose documents. It does not mean a list of possibilities. In this case, the agency gave a boilerplate list of possibilities as its reasons. “The statutory requirement that the agency provide ‘the reasons' for its ‘determination’ strongly suggests that the reasons are particularized to the “determination'-most obviously, the specific exemptions that may apply to certain withheld records.” Citizens for Responsibility and Ethics in Washington v. F.E.R.C., 711 F.3d 180, 186 (D.C.Cir. 2013). In Mead Data Central v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C.Cir. 1977), the Air Force provided very little information to the requester, at the administrative level. The Court stated, “We do not excuse the Air Force's failure to provide Mead Data with sufficient detail about the nature of the withheld documents and its exemption claims at the administrative level.” Id. The Merriam-Webster online dictionary, for the second meaning of “the,” states that it means: “used as a function word to indicate that a following noun or noun equivalent is a unique or a particular member of its class < the Lord.” [italics in original] http://www.merriam-webster.com/dictionary/ In Noel Canning v. N.L.R.B., 705 F.3d 490, 500 (D.C.Cir. 2013), the Court stated that there was an important difference between “the Recess,” and “a recess,” as used in Article II of our Constitution. Citing a dictionary from 1755, the Court found that then, “as now, the word ‘the’ was and is a definite article...' the' [is defined as an] ‘article noting a particular thing (emphasis added). Unlike ‘a’ or “an,' that definite article suggests specificity.” The Court further stated that “it makes no sense to adopt the Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 14 of 38 15 Board's proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’” Id. Similarly, in the instant case, it makes no sense to adopt the proposition that when Congress said “the reasons,” what it really meant was a list of “possible reasons.” Congress does not want an agency to obstruct public access to records. The DHS is diverting FOIA cases from its docket to the dockets of the federal courts. The DHS does not even attempt to adjudicate these cases; it asks the courts to use their resources on cases that could be more appropriately addressed at the administrative level. The DHS is hoping that most requesters will not file federal lawsuits. The DHS figures it can “blow off” most requesters, and then, only have to work on making real responses to those few requesters who are able to hire lawyers. This policy and practice violates the FOIA. At times, in the absence of a statute, a court will mandate that an agency gives reasons for its decisions. For example, in Encino Motorcars v. Navarro, 136 S. Ct. 2117, 2125, (2016), the Department of Labor had issued a regulation without giving reasons. The Supreme Court reversed and remanded, stating: “One basic procedural requirement of administrative rulemaking is that an agency must give adequate reasons for its decisions.” An agency has a “duty to explain.” Id. at 2126. Where an “agency in fact gave almost no reasons at all,” the Supreme Court disapproved. Id. at 2127. In the instant case, there is a statute: 5 U.S.C. § 552(a)(6)(A)(i). If in the absence of a statute, an agency must give reasons, then all the more when there is a statute mandating reasons, the agency must give reasons. II. The December 2013 letter violates the FOIA because it hides “the” reasons in a long list of possibilities. Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 15 of 38 16 “[I]t is preposterous to contend that all of the information is equally exempt under all of the alleged exemptions.” Vaughn v. Rosen, 48 F.2d 820, 827-28 (D.C.Cir. 1973). Yet, that is what the December 2013 letter claims. The agency letter in the instant case improperly lumps all documents into several categories. The agency letter is more vague and confusing than the explanation criticized in Prison Legal News v. Samuels, 787 F.3d 1142 (D.C.Cir. 2015). In that case, the requester sought documents showing all money paid by the agency for lawsuits and claims. The agency furnished a declaration from Wilson J. Moorer, who put documents into categories, and specified the exemptions that applied to each category. However, the Court ruled that it was improper to lump all kinds of claimants and witnesses together. Id. at 1150. An employee assaulted by another employee is a very different kind of case than an inmate who was held 154 extra days. A sexual assault is very different from being hit in the eye by an object. There is a wide variety of privacy interests at stake: some employees were victims; some were perpetrators. An agency must give sufficient information “to allow a court to determine whether specific claimed exemptions are properly applied.” Id. (quoting Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994). It violates the FOIA to respond with a long list of irrelevant boilerplate The requester wants “the” reasons why he is not being given the documents. It is unfair to the requester if he is given boilerplate instead. Others who respond with boilerplate have been criticized: In the case In re Harman International Industries, Inc. Securities Litigation, 791 F.3d 90, 102 (D.C. Cir. 2015), a securities fraud case, the Court criticized the company for using “mere boilerplate” to warn investors of risks. A company must tailor its Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 16 of 38 17 statements to the “specific circumstances” of its business; providing statements “of no “useful quality” will not shield the company from liability. Id. “The consistency of the defendants' language over time despite changing circumstances belies any contention that the cautionary language was tailored to the specific future projection.” Id. at 107 (internal punctuation and citation omitted). Accord: Southland v. INSpire, 365 F.3d 353, 372 (5th Cir. 2004) (a company that gives “merely a boilerplate litany of generally applicable risk factors” violates the securities law). See also: U. S. v. Rutigliano, 790 F.3d 389, 394 (2d Cir. 2015)(concerning the guilt of a person accused of helping employees submit false applications for disability payments, that fact he used “the same boilerplate language to describe individual afflictions of many retirees” is relevant.) Each agency responding to a FOIA request should respond with as much care as lawyers and adjudicators It violates the FOIA to give a list of possibilities to a requester. An agency may list an exemption if, after reasonable inquiry, there are facts justifying the listing. This is what is required of lawyers and other adjudicators: A prosecutor who makes a peremptory strike of a juror must give “the real reasons for the strikes,” not “possible reasons.” Williams v. Stephens, 2015 WL 4751020 at *4 (S. D. Texas 2015) [emphasis in original] (citing Batson v. Kentucky, 476 U.S. 79 (1986). “It does not matter that the prosecutor might have had good reasons; what matters is the real reason [jurors] were stricken.” (internal quotation marks and alterations omitted). Williams v. Louisiana, 136 S. Ct. 2156, 2157 (2016) [emphasis added]. An employer can be sanctioned for failing to give the “real reasons” for an adverse employment decision. Walker v. Johnson, 798 F.3d 1085, 1092 (D.C.Cir. 2015) Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 17 of 38 18 The Equal Employment Opportunity Commission [“EEOC”] must inform the employer about the “specific” allegation of wrongdoing, to satisfy the duty of the EEOC to attempt conciliation. Mach Mining LLC v. Equal Employment Opportunity Commission, 135 S. Ct. 1645, 1655-56 (2015). The underlying statute, 42 U.S.C. § 2000e-5(b), did not expressly require the furnishing of real allegations; nonetheless, the Court ruled that was the intent of Congress. Mach Mining stands for the proposition that Congress intended agencies to give real and useful information to the public. If the somewhat vague statute in Mach Mining requires an agency to give “specific” information to an employer, then all the more the statute in the instant case requires the agency to give the “specific” reasons for its actions to the requester. Fed. Civ. R. 8(e)(2) allows a party to set forth “as many separate claims or defenses as the party has,” subject to “the obligations set forth in Rule 11.” Rule 11(b)(3), in turn, provides that the signature of an attorney constitutes a certificate by him that, “after an inquiry reasonable under the circumstances,” that “the factual contentions have evidentiary support...” One purpose of the rule is to “streamline the litigation process by lessening frivolous claims or defenses.” Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174 (D.C. Cir. 1985) (citations and quotations omitted). “When groundless pleadings are permitted, the integrity of the judicial process is impaired. Id. at 1180. If Rule 11 is not employed to punish, “the message to those inclined to abuse or misuse the litigation process will be clear. Misconduct, once tolerated, will breed more misconduct....” Id. An agency responding to a FOIA request should be held to the same standard. Fed. Rule Civ. Proc. 52(a) provides that “the court must find the facts specifically and state its conclusions of law separately.” This rule benefits the parties, as well as the Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 18 of 38 19 appellate tribunal. It forces the adjudicator to focus and be precise. “Decisions are frequently reversed for such omissions.” Khan v. Fatima, 680 F.3d 781, 788 (7th Cir. 2012) [trial judge failed to make findings of fact in a child custody case; case remanded]. In a bankruptcy case, the Court stated: “One of the purposes of findings of fact and conclusions of law is to afford a party an understanding of the basis for the trial court's decision before it decides whether to undertake the time and expense of an appeal. Many a well-written decision has quelled an appeal. Additionally, if findings of fact and conclusions of law are made subsequent to a party's appeal, especially after designation of the issues on appeal, a reasonable person would be justified in believing that they were tailored to rebut the issues raised on appeal. Rule 52 requires a trial court to issue findings and conclusions in tandem with its ruling or decision, not following a party's appeal of that decision. The disclosure of how and why a bankruptcy court rules a certain way is essential to our justice system.” In re Picht, 403 B.R. 707, 713 (Bankruptcy Appellate Panel of the Tenth Circuit, 2009). The phrase “the reasons” is used in many other statutes. If the court allows this agency to be sloppy, glib, and careless, other agencies will follow suit. Social Security cases 42 U.S.C. § 405(b)(1) provides that if the Commissioner of Social Security makes a “determination” that is adverse to the individual, the Commissioner shall state “the reason or reasons” upon which it is based. Courts have often reversed and remanded determinations that violate this statute. Treichler v. Commissioner, 775 F.3d 1090, 1103 (9th Cir. 2014)(“Vague allegations,” without “specific findings” are insufficient. When “boilerplate” is “routinely included” in a decision, and no reasons are provided, the case shall be remanded). Cox v. Commissioner, 615 Fed. Appx, 254, 260 (6th Cir. 2015) (an Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 19 of 38 20 ALJ has the duty to give “the reason or reasons” for conclusions; using “the same boilerplate language” is disfavored.) Criminal sentencing 18 U.S.C. § 3553(c) provides that in a criminal sentencing case, the judge shall state “the reasons” for the sentence. Failure to do so requires a remand. A judge must adequately explain the chosen sentence to promote the perception of fair sentencing, and to enable “meaningful appellate review.” U.S. v. Bigley, 786 F.3d 11, 16 (D.C.Cir. 2015). Failure to do so affects “the public reputation of judicial proceedings.” Id. Inspection of books concerning pesticides 7 U.S.C. § 136f (b): the officer must give the owner “the reason for the inspection” Defense Department purchase of technology 10 U.S.C. § 2225(b)(5)(B) : The Secretary shall provide “the reasons” for a purchase outside of his department Cost or pricing data to be given to contractors 10 U.S.C. § 2306a(a)(5): the head of procuring may waive certain requirements if he “justifies in writing the reasons for the determination.” Defense Department contracts with small disadvantaged businesses 10 U.S.C. § 2323(d)(2) : the Secretary of Defense need not comply with a goal of 5 percent contracting with certain small businesses, if the Secretary provides Congress with “the reasons” for his determination to do so Procurement contracts 15 U.S.C. § 637(a)(1)(A): the Secretary of a department “shall specify the reasons why the selected firm was determined to be incapable to perform” Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 20 of 38 21 Notice of solicitation for certain contracts 15 U.S.C. § 637(f)(5) “in the case of a procurement using procedures other than competitive procedures, a statement of the reason justifying the use of such procedures” is required Recognition of an institution of higher education by the Secretary 20 U.S.C. § 1099b(i) The Secretary shall not recognize certain institutions of higher education unless it provides the Secretary with “the reasons” why it is accredited by more than one accrediting agency. Conclusion A decision allowing glib boilerplate to satisfy the statute in the instant FOIA case will encourage other courts and agencies to follow suit. III.The fact that courts have allowed agencies to assert new exemptions at the district court level, not previously asserted at the administrative level, does not excuse the agency from making a good faith attempt to comply with the mandate of the statute: that the agency shall state “the reasons” for its determination at the administrative level. In Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 779 (D.C. Cir. 1978) the Court stated that an agency may prevail on an exemption raised either at the agency level or at the district court level. However, the issue before the Jordan court was whether an agency could raise an exemption at the court of appeals, not whether it could do so at the lower court. Furthermore, the Court did not mention §552(a)(6)(A)(i), which states each agency “shall” give “the reasons” for its determination “immediately.” To be sure, courts have allowed the belated assertion of exemptions at the district court level. For example, in Gula v. Meese, 699 F.Supp. 956, 959, n.2 (D.D.C. 1988), the court allowed a (b)(7) exemption to be considered, which deals with law enforcement, with crime, and confidential methods and sources. Implicitly, the court recognized that Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 21 of 38 22 some criminals commit murder; therefore confidential sources must be protected. To prevent real harms, courts should properly consider whether to excuse mistakes and tardiness by an agency. However, general principles of fairness and efficiency in litigation counsel against permitting an agency to belatedly assert new exemptions, absent any showing of good cause. Courts should not allow tardiness and sloppiness from an agency as a matter of course. Basic principles of efficiency and finality counsel in favor of requiring an agency to make at least some showing of good cause to avoid a finding of forfeiture. The FOIA “strongly favors prompt disclosure.” August v. FBI, 328 F.3d 697, 699 (D.C. Cir. 2003). 5 U.S.C. § 552(a)(6)(A)(i) states that each agency shall make a determination within 20 days “and shall immediately notify the person making such requests of such determination and the reasons therefor.” [emphasis added]. “Immediately” means right away. It does not mean “only after the case is before a district court.” Allowing agencies to slowly disclose exemptions over time frustrates FOIA. The statute is the statute. §552(a)(6)(A)(i) imposes duties upon each agency. The Court should enforce the statute, and order the agency to comply with it, at the administrative level. At a later time, the agency may seek to assert a new exemption. Be that as it may, the requester and a court can deal with that, when and if it happens. But now, we are considering the duties of an agency at the administrative level. At this level, the agency must obey the statute. The Court should so rule. If a Court allows an agency to only spend ten seconds on a FOIA request, and send the requester a glib boilerplate letter, and never impose a sanction, the agency will continue to be quick and sloppy. If an agency knows it can later freely amend its reasons, Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 22 of 38 23 the agency will not bother to comply with the mandate of Congress. If the Court allows free amendments, then the Court has effectively amended the statute to read: “An agency must give the [real] reasons for its determination, only at the district court level.” Or, put another way, the Court will have amended the statute to read: “An agency must give the reasons only to a requester who files a federal lawsuit.” This violates the intent of Congress. Requesters should not be forced to file lawsuits to get the real reasons. In theory, an agency has special expertise. It knows what documents it has, and it can and should give real reasons to a requester. This will enable the requester to make a meaningful administrative appeal. The agency might then determine some facts, and create a record. It might rule in favor of the requester! In that event, no federal case. The burden of the district court judge is not increased. Or, if the agency does rule against the requester, the case would arrive at the district court with a developed and argued record. The district court would then have the advantage of the views of the “expert” agency. The district court would not have to consider all issues itself for the first time. This would mean less work for the court. In cases under the Administrative Procedures Act, the government insists that claims must be asserted at the agency level, and that claims not made there are waived. For example, in Koretoff v. Vilsack, 707 F.3d 394, 397 (D.C. Cir. 2013), the Secretary of Agriculture proposed a rule requiring almonds to be treated with heat or chemicals, to prevent the spread of salmonella. A group of almond producers objected to the rule; however, they did not make any arguments during a time period of “notice and Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 23 of 38 24 comment.” The Secretary then argued the claims were waived, and could not be asserted in district court. The court agreed. The government can insist upon assertion of claims at the agency level but a FOIA requester cannot? This Honorable Court should enforce the statute. It should order the agency to re- write its December 2013 letter to state the real reasons why it refuses to disclose documents, or any part of them, to Mr. Bayala. IV.The December 2013 letter violates the FOIA because it gave false reasons for the determination. The December 2013 letter refers to exemptions and documents which have nothing to do with the documents in Mr. Bayala’s file: -(b)(5) documents “prepared in contemplation of litigation;” “confidential communications between attorney and client” - (b) 6) “personnel” files; “medical” files; “birth certificates…drivers’ licenses” -“documents belonging to a third party that are considered personal” - (b)(7)(C) “information relating to third-party individuals” -“names, addresses, identification numbers, telephone numbers, fax numbers” -(b)(7)(E) “law enforcement investigations” “guidelines for law enforcement” “manuals, checkpoint locations, surveillance techniques” It is false to suggest that these items and these exemptions have anything to do with Mr. Bayala. This violates the FOIA. V.The December 2013 letter violates the FOIA because it did not describe or identify documents referred to other agencies. The December 2013 states that 14 pages were referred to the State Department, and that “a potentially responsive document(s)” was referred to ICE. These items are not described. Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 24 of 38 25 Mr. Bayala requested three items: 1] notes of the asylum officer; 2] the assessment, and 3] “any material used by the Asylum Officer, but not given to him by the individual named above.” Were any of those three items referred to the State Department? If so, then Mr. Bayala should not appeal the December 2013 letter, concerning those items? Were any of those three items referred to ICE? If so, then Mr. Bayala should not appeal the December 2013 letter? The DHS may refer a document to another agency, but in so doing, DHS may not impose burdens upon the requester. McGehee v. C.I.A., 697 F.2d 1095, 1110 (D.C. Cir. 1983) An agency may not “significantly to impair the requester's ability to obtain the records or significantly to increase the amount of time he must wait to obtain them. “ Id. If the DHS refers a document to another agency without informing Mr. Bayala what the document was, then certainly a “burden” has been placed on Mr. Bayala. How can he make inquiries of the other agency if he does not know what document is? The DHS has the documents right in front of it! It would be easy to inform Mr. Bayala of the name, date, and description of the document that the DHS is sending elsewere. 6 C.F.R. § 5.3(b), a DHS regulation, states that the FOIA request must reasonably describe the records that are being sought. Mr. Bayala did that in this case. If the DHS refers documents to another agency, it should “reasonably describe” those documents to Mr. Bayala. VI.The December 2013 letter violates the FOIA because it uses the words “may” and “could”. Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 25 of 38 26 The December 2013 letter states that under exemption (b)(5), the agency withholds documents that “may” be “prepared in contemplation of litigation, or confidential communication between attorney and client.” The requester does not care what the agency “may” do in some cases. He cares about his own case. He should be told, directly, and specifically, about his own case. Mr. Bayala wonders if the asylum officer notes were being withheld because they “were prepared in contemplation of litigation.” He wonders if the assessment was withheld because it is a “confidential communication between attorney and client.” He wonders if the “material used by the Asylum Officer, but not given to him by [Mr. Bayala]” is material “prepared in contemplation of litigation.” The December 2013 letter mentions (b)(6). The agency suggests it “may” withhold documents such as “personnel” files, “medical” files, “birth certificates, naturalization certificates…” These are documents that may belong “to a third party.” Mr. Bayala wonders who the third party might be. He wonders if the asylum officer notes are “personnel” files, or if the assessment is a “medical” file. Exemption (b)(7)(C) refers to law enforcement records, “which could reasonably be expected to constitute an unwarranted invasion of personal privacy.” Mr. Bayala seeks the notes and assessment, about himself. Whose personal privacy is the DHS concerned about? The agency suggests it “could” withhold documents such as “names, addresses, identification numbers… [or other documents] that are considered personal.” Mr. Bayala seeks his own documents! Who is it that the DHS wants to protect? Exemption (b)(7)(E) refers to records for law enforcement purposes. The agency Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 26 of 38 27 suggests it withholds documents which “could” consist of “law enforcement system checks…” Mr. Bayala wonders what the agency is talking about. Is the agency talking about documents that he requested? Probably not. Mr. Bayala requested “material used by the Asylum Officer, but not given to him by [Mr. Bayala].” Is this material a record for law enforcement purposes? The December 17 th letter is similar to the declaration of David Hardy, which was criticized in Citizens for Responsibility and Ethics in Washington v. United States Department of Justice, 746 F.3d 1082, 1100-01 (D.C. Cir. 2014). The declaration of Mr. Hardy stated that the requested documents contain information that “could be used as evidence before a Federal Grand Jury, or may be subpoenaed by a Federal Grand Jury… This conclusory explanation is insufficient.” Id. at 1100. [emphasis in original]. The Court later stated that “Such boilerplate will not do.” Id. at 1101. An agency must tell the requester what it is actually doing, and must reference the documents that were actually requested. An agency should not confuse the requester with vague statements of policy. VII.The December 2013 letter violates the FOIA because it confuses and misleads the requester, when read as a whole. 5 U.S.C. § 552(a)(6)(A)(i) requires an agency to give “the reasons” for its denial. The December 2013 letter does not give the real reasons, it gives false reasons, it does not describe documents, and it refers to possibilities. This is confusing and misleading, and constitutes a violation of the FOIA. VIII. The December 2013 letter violates the FOIA because it thwarts the requester’s “right to appeal’” the reasons why the determination was made. Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 27 of 38 28 5 U.S.C. § 552(a) (6) (A) (i) provides that a requester has “the right” “to appeal” any adverse determination. Congress intended by this provision that a requester would have the right to make a “meaningful” appeal. Even in the absence of a statute, Due Process ordinarily requires that the government provide “the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v.Eldridge, 424 U.S. 319, 333 (1976)(emphasis added)(citation and quotation omitted). The government must provide “the opportunity to effectively be heard.” National Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 208 (D.C. Cir. 2001)(emphasis added)(citation and quotation omitted). Here, FOIA requesters are expressly given statutory rights. The court should enforce those rights. Mr. Bayala does not know the reasons why the agency determined to not give him what he requested. So, of course, he cannot make a meaningful appeal. Mr. Bayala is in the same position as the plaintiff, in Ralls Corp. v. Committee on Foreign Investment in the United States, 758 F.3d 296 (D.C.Cir. 2014). Ralls purchased land in the State of Oregon, with the intent to operate windfarms. Ralls installed concrete, and turbines. But then the President of the United States issued an order preventing further construction, and requiring Ralls to divest itself of the business, on the grounds of “national security.” Ralls was not provided with the evidence the government relied upon, “nor an opportunity to rebut that evidence.” Ralls Corp. 758 F.3d 296, 306. Ralls “never had the opportunity to tailor its submission to the Appellee’s concerns or rebut the factual premises underlying the President’s action.” Id. at 320. The right to appeal is similar to the right to rebut. Without knowing the factual basis for an action, there is no “fair opportunity for rebuttal.” Wilkinson v. Austin, 545 Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 28 of 38 29 U.S. 209, 225-26 (2005)(prison inmates “must receive notice of the factual basis [for supermax placement] and a fair opportunity for rebuttal.”). Even an accused “enemy combatant” is entitled to a fair opportunity to rebut. Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (“We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker.”) Convicted criminals and enemy combatants must be given a “fair” opportunity to rebut the Government’s factual assertions. So too a FOIA requester. Mr. Bayala is in the same position as others, who later were granted relief Courts have protected others, who are similar to Mr. Bayala. For example, Mr. Bayala is in the position as the steamship operators in American Mail Line v. Gulick, 411 F.2d 696 (D.C. Cir. 1969). In that case, at issue was whether steamship operators were required to refund $3,300,000. The agency wrote a 31-page memorandum explaining why the refund was required, but did not give it to the steamship operators. The steamship operators were required to file a petition for re-consideration, without any knowledge of any of the reasons for the decision. The Court framed the issue as: “The question which must be decided is whether an administrative agency may take affirmative action against a private party by means of a decision in which it states that the only basis for such action is a certain specified memorandum and then refuse to disclose the memorandum to the party affected by the action.” Id. at 700. The Court further stated that the issuance of the decision “compounds the Board’s lamentable administrative practices and procedures. Appellants were forced to prepare a Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 29 of 38 30 petition for reconsideration of the Board’s April 11 ruling without any knowledge of any of the reasons for that ruling.” Id. at 704. “This court is unaware of how a party can meaningfully prepare a request for reconsideration of a decision which contains no reasons for its determination.” Mr. Bayala is in the same position as the engineer whose security clearance was revoked, and who was forced out of his job, in Greene v. McElroy, 360 U.S. 474, 496 (1959) (“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue.”) Yet another case which supports the claims of Mr. Bayala is Shermco Industries, Inc. v. Sec’y of U.S. Air Force, 452 F. Supp. 306, 317, note 7 (N.D. Tex. 1978), reversed on other grounds 613 F.2d 1314 (5 th Cir. 1980). The Court stated: “It would be impossible for a requesting person to effectively appeal an agency decision through the administrative process with any hope of changing the agency's mind if the person were denied access to adequate information about the adverse decision. A person cannot effectively appeal a decision about the releasability of documents or the charging of fees if he is not informed of at least a list of the documents to which he was denied access, what fees he will be charged for releasable documents, and why those decisions were made. Denial of this information would in all likelihood be a violation of due process as well as effectively gutting the reasons for applying the exhaustion doctrine in FOIA cases. “ Mr. Bayala is like Mr. Khouzam in Khouzam v. Attorney General, 549 F.3d 235, 257 (3d Cir. 2008): he “had no opportunity to develop a record with his own evidence;” Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 30 of 38 31 he “had no opportunity to make arguments on his own behalf;” Id., and he was “denied his right to an individualized determination.” 549 F.3d at 258. The APA has been interpreted to require that the public have a “meaningful” opportunity to submit data and written analysis regarding a proposed rulemaking; the FOIA should also be so interpreted The Administrative Procedures Act, 5 U.S.C. § 553(c) provides that “the agency shall give interested persons an opportunity to participate in the rulemaking…” This means that the opportunity “must be a meaningful opportunity.” Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1101 (D.C. Cir 2009). Accord: Prometheus Radio Project v. FCC, 652 F.3d 431, 453 (3d Cir. 2011) (“The APA requires that the public have a meaningful opportunity to submit data and written analysis regarding a proposed rulemaking.”) The FOIA statute, giving requesters the right to appeal, should be interpreted in a similar fashion: the FOIA requester has the right to a “meaningful” appeal. The DHS is thwarting the purpose of administrative appeals. Exhaustion of administrative remedies can be valuable to the parties and the courts, if a full record is developed. Toensing v. U.S. Dep’t of Justice, 890 F. Supp. 2d 121, 133 (D.D.C. 2012). The agency should “make a factual record to support its decision.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 61 (D.C. Cir. 1990). The agency might correct its own errors, thereby conserving judicial resources. If there is a “factual” record, judicial review is informed and narrow. In the instant case, the December 2013 letter provides no real facts. Mr. Bayala cannot mount a real appeal. IX.The December 2013 letter violates the FOIA because it gives no facts or reasons why nothing can be segregated. The fifth sentence of the December 2013 letter has 19 words: Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 31 of 38 32 “In our review of these pages, we have determined that they contain no reasonably segregable portion(s) of non-exempt information.” This sentence is a conclusion; it states no facts or reasons. What documents are being referred to, in the fifth sentence? One reason for the conclusion that “nothing can be segregated,” is if a document is “fully protected” under a doctrine, then segregability is not required. For example, “factual material is itself privileged when it appears within documents that are attorney work product. If a document is fully protected as work product, then segregability is not required. Judicial Watch v. Dep’t of Justice, 8432 F.3d 366, 371 (D.C. Cir. 2005). Does the DHS still claim that this doctrine applies? Another reason why an agency could declare that nothing is segregable is because to try to segregate would yield only meaningless phrases, at great cost to the agency. Mead Data Central v. U.S. Dep’t of Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977). If that is the reason why the DHS cannot segregate, the DHS should say so in its initial response. 5 U.S.C. § 552(b) requires an agency to disclose all non-exempt information from a document. An agency must explain why it cannot release any such information. In National Ass’n of Criminal Def. Lawyers v. U.S. Dep’t of Justice, 2016 WL 3902 666 at *7(D.C. Cir. 2016) the Court instructed courts “to make at least a preliminary assessment of the feasibility of segregating non-exempt material. When reviewing such records in camera, courts may look at "what proportion of the information in a document [appears to be] non-exempt and how that material is dispersed throughout the Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 32 of 38 33 document." Mead Data, 566 F.2d at 261. …In such cases, courts presumably would examine each section to determine if it might be amenable to segregation and disclosure.” The Court continued: “[I]t may be that portions of the record which otherwise appear to contain neutral information are encompassed within (and integrated with) protected work product and thus there is no portion that is "reasonably segregable." But there may also be cases in which a record containing some amount of work product also contains—or at least appears to contain—segregrable, non-exempt material subject to disclosure. In that circumstance, a court presumably would require the agency to provide "a description of which parts of the withheld documents are non-exempt . . . and either disclose them or offer adequate justification for continuing to withhold them." Id. In National Association of Criminal Defense Lawyers, the Court of Appeals gave direction to district courts. Those same directions apply to agencies at the administrative level. These principles were also stated in Berard v. Fed. Bureau of Prisons, 2016 WL 3962-797 (D.D.C. 2016)(“An agency also has the burden of detailing "what proportion of the information in a document is non-exempt and how that material is dispersed throughout the document." Mead Data Cent., Inc. v. U.S. Dep't of the Air Force, 566 F.2d 242, 261 (D.C. Cir. 1977).” Id. at *6. Accord: AIC v. DHS, 950 F. Supp. 2d 221, 248 (D.D.C. 2013)(agency must “fully explain its decisions on segregability.”) The letter violates the FOIA because it lumps together all of the requested documents Mr. Bayala requested 1] the notes; 2] the assessment, and 3] “any material used by the Asylum Officer….” If nothing can be segregated from the notes, the agency should so state. If nothing can be segregated from the assessment, the agency should so Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 33 of 38 34 state. The fact that the agency lumped all the documents together, and then gave the glib, boilerplate conclusion that nothing can be segregated indicates the agency did not really try to segregate. The agency did not make a good faith effort to segregate. Two courts have found that parts of an assessment can be segregated; this shows that the agency did not make a good faith effort to segregate portions of the assessment. Two courts, after in camera inspections, found that asylum officer assessments indeed have segregable portions: -Gosen v. US CIS, 118 F. Supp. 3d 232, 243 (D, D.C. 2015) (“The Court has reviewed the documents in question and finds that there is at least some factual material that may not expose the deliberative process. For example, both assessments begin with factual introductory information.”); -Abtew v. DHS, 47 F. Supp. 3d 98, 113-14 (D.D.C. 2014): “After reviewing the Assessment in camera, the Court concludes that the first six paragraphs simply recite and summarize the facts that [the] plaintiff presented to the [asylum officer] during his asylum application interview. Those paragraphs do not include any analysis or impressions, and they do not reflect the [asylum officer's] deliberative process: although the document does not purport to be a verbatim rendition of the interview, and there may have been some streamlining involved, the summary does not involve the sort of culling of facts from a large universe that could be characterized as deliberative.” A third court stated it believed that “there may be” a portion that can be segregated The court in Gatore v. U.S. Dep’t of Homeland Security, 2016 WL 1367730, at *5 (D.D.C. 2016) stated: “The Court is persuaded by Gosen and Abtew that there may be some portion of the assessments at issue in this case that contain factual information that Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 34 of 38 35 may reasonably be segregated from the whole.” The court in Gatore denied the motion for summary judgment by the DHS, which argued that nothing could be segregated out of an assessment. Three federal courts have stated that they believe there are indeed portions of an asylum officer assessment that can be segregated and disclosed. The DHS should not ignore these pronouncements. The DHS has routinely given boilerplate, “nothing can be segregated” responses to requesters Between September 2011 and April 2014, Jill Eggleston, a DHS employee, wrote at least 17 letters to asylum applicants. Each of these 17 letters contained the same boilerplate as the letter written to Mr. Bayala. Pl.’s Facts, ¶ 8. Between July 2014 and September 2014, Ms. Eggleston wrote 8 more identical letters. Pl’s Facts, ¶ 14. Between July 2015 and May 2016, Ms. Eggleston wrote five more identical letters. Pl.’s Facts, ¶ 18. Ms. Eggleston wrote yet another identical boilerplate letter, dated May 10, 2016. Pl.’s Facts, ¶ 21. This boilerplate indicates that the DHS does not spend any time in attempting to give a good faith response to requesters. “Such boilerplate will not do.”Citizens for Responsibility and Ethics in Washington v. United States Department of Justice, 746 F.3d 1082, 1101 (D.C. Cir. 2014). The Fourth Circuit Court of Appeals disapproved of “boilerplate language” in Chen v. Holder, 742 F.3d 171, 181 (4 th Cir. 2014). That case involved an agency, the “BIA,” [Board of Immigration Appeals] that was charged with adjudicating asylum claims made by immigrants. The BIA had rejected evidence submitted by Mr. Chen, in a Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 35 of 38 36 decision using a particular phrase. The Fourth Circuit noted that the BIA had used “this precise language before…” 742 F.3d at 181, note 4. “The boilerplate language used by the BIA in discounting Li and Chen’s evidence was insufficient to demonstrate that the agency gave it more than perfunctory consideration.” 742 F.3d at 181. The DHS boilerplate indicates the agency had already made up its mind and was mailing out robo-letters in an effort to do the minimum necessary to squeak by judicial review. XI.The December 2013 letter violates the FOIA because it thwarts the requester’s “right to appeal” the reasons why nothing is segregable. A FOIA requester has the “right” “to appeal” a determination. 5 U.S.C. § 552(a)(6)(A)(i). This means a “meaningful” appeal. How can Mr. Bayala appeal the determination that nothing is segregable? Earlier in this memorandum, at Argument #8, Mr. Bayala argued that the December 2013 letter violated his right to appeal, citing Mathews v.Eldridge, 424 U.S. 319, 333 (1976). Mr. Bayala repeats that argument here. The government must provide “the opportunity to effectively be heard.” National Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 208 (D.C. Cir. 2001)(emphasis added)(citation and quotation omitted). Mr. Bayala does not know the reasons why nothing can be segregated. So, of course, he cannot make a meaningful appeal. Mr. Bayala is in the same position as the plaintiff, in Ralls Corp. v. Committee on Foreign Investment in the United States, 758 F.3d 296 (D.C.Cir. 2014). An agency must give a “meaningful” opportunity for a person to appeal. Rural Cellular v. FCC, 588 F.3d 1095, 1101 (D.C. Cir 2009). An agency should “make a factual record” in its administrative process. Oglesby v. U.S. Dep’t of the Army, 920 F.2d Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 36 of 38 37 57, 61 (D.C. Cir. 1990). The DHS must give at least some facts and reasons explaining why nothing can be segregated. Then, Mr. Bayala can make a meaningful appeal. XII. The December 2013 letter violates the FOIA when viewed in the aggregate. The December 2013 does not give real reasons; it gives false reasons; it confuses and misleads. It uses boilerplate. It thwarts the requester’s right to appeal in many ways. Viewed in the aggregate, it violates the FOIA. CONCLUSION The purpose of the Freedom of Information Act is to serve “the citizens' right to be informed about what their government is up to.” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal quotation marks omitted). Citizens should be informed within 20 days of their requests. They should be informed without having to file lawsuits. Each agency must make a good faith effort to comply with the mandates of the FOIA at the administrative level. Congress did not say, “Follow the mandates only for those requesters who file lawsuits,” Congress said:”Follow the mandates within 20 days of each request.” The DHS should re-write the December 2013 letter, as follows: A] it should describe what documents were referred to the State Department and what documents were sent to ICE; B] it should give the real reasons, and facts, why the assessment is exempt; C] it should give real reasons, and facts, why nothing can be segregated out of the assessment [if indeed that is still the position of DHS]; Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 37 of 38 38 D] it should directly respond to Mr. Bayala’s request for “any material used by the Asylum Officer, but not given to him by [Mr. Bayala]”; E] it should not mention exemptions that do not apply to what Mr. Bayala requested; F] it should not mention the words “may” or “could.” The Court should enjoin the DHS from issuing letters similar to the December 17 th letter in the future. The agency should advise Mr. Bayala of his right to an administrative appeal. Perhaps he will appeal; perhaps the appeal will be fruitless; perhaps he will file another complaint in district court. Or, perhaps not. The agency may give him what he wants, thereby obviating any further federal litigation. Dated: August 26, 2016 Respectfully submitted, DAVID L. CLEVELAND Attorney for Plaintiff DC Bar # 424209 924 G Street, NW Washington, DC 20001 [202] 772-4345 Fax: [202] 386-7032 1949.david@gmail.com Case 1:14-cv-00007-RC Document 28 Filed 08/26/16 Page 38 of 38 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________ ) FLORENT BAYALA ) Plaintiff, ) ) v. ) Civil Action No. 14-CV-007-RC ) UNITED STATES DEPARTMENT ) OF HOMELAND SECURITY, ) Defendant, ) __________________________________ ) ORDER After considering the motion of Mr. Bayala for summary judgment, and the record herein, it is this _____ day of ________, 2016, hereby ORDERED: the motion is granted. UNITED STATES DISTRICT JUDGE Case 1:14-cv-00007-RC Document 28-1 Filed 08/26/16 Page 1 of 1 Case 1:14-cv-00007-RC Document 28-2 Filed 08/26/16 Page 1 of 5 Case 1:14-cv-00007-RC Document 28-2 Filed 08/26/16 Page 2 of 5 Case 1:14-cv-00007-RC Document 28-2 Filed 08/26/16 Page 3 of 5 Case 1:14-cv-00007-RC Document 28-2 Filed 08/26/16 Page 4 of 5 Case 1:14-cv-00007-RC Document 28-2 Filed 08/26/16 Page 5 of 5 Case 1:14-cv-00007-RC Document 28-3 Filed 08/26/16 Page 1 of 2 Case 1:14-cv-00007-RC Document 28-3 Filed 08/26/16 Page 2 of 2 Case 1:14-cv-00007-RC Document 28-4 Filed 08/26/16 Page 1 of 3 Case 1:14-cv-00007-RC Document 28-4 Filed 08/26/16 Page 2 of 3 Case 1:14-cv-00007-RC Document 28-4 Filed 08/26/16 Page 3 of 3 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 1 of 9 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 2 of 9 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 3 of 9 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 4 of 9 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 5 of 9 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 6 of 9 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 7 of 9 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 8 of 9 Case 1:14-cv-00007-RC Document 28-5 Filed 08/26/16 Page 9 of 9 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 1 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 2 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 3 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 4 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 5 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 6 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 7 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 8 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 9 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 10 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 11 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 12 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 13 of 14 Case 1:14-cv-00007-RC Document 28-6 Filed 08/26/16 Page 14 of 14