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Publicized memo not protected by exemption

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NEWS MEDIA UPDATE   ·   SECOND CIRCUIT   ·   Freedom of Information   ·   June 2, 2005

Publicized memo not protected by exemption

  • The Justice Department cannot hide from the public a memorandum about the legality of a new immigration policy because officials have repeatedly discussed its contents publicly, a federal appellate court ruled last week.

June 2, 2005  ·   A coalition of immigrant rights groups has won the right to see a Justice Department memorandum weighing the legality of whether state and local law enforcement officers can enforce certain federal immigration provisions. The U.S. Court of Appeals in New York City (2nd Cir.) on May 31 affirmed a trial court decision that the Freedom of Information Act’s Exemption 5 does not protect internal agency memoranda as “deliberative” when they have been widely discussed in public.

Judge Robert A. Katzmann wrote for a unanimous three-judge panel of the appeals court, affirming a lower court decision that the government cannot claim the protections of the deliberative process privilege after the requested memorandum’s contents have been explained in public.

The National Council of La Raza and other groups won access to a document which analyzes a 2002 Justice Department change in policy permitting state and local law enforcement officials to detain individuals suspected of being deportable for civil, rather than criminal, breaches of the law. To support the new policy, the department began including data about foreign visitors in the National Crime Information Center database, an information warehouse checked by police officers during routine traffic stops.

At a June 2002 press conference introducing the so-called “National Security Entry-Exit Registration System,” then-Attorney General John Ashcroft cited an internal Office of Legal Counsel memorandum as finding that it is within “the inherent authority of the states” to detain illegal immigrants for federal civil as well as criminal immigration violations. Other Justice Department officials subsequently gave more detailed briefings on the memo’s contents.

The agency later cited Exemption 5 in refusing to release the memo in response to FOI Act requests filed by the immigration groups in August 2002 and March 2003. The groups sued and after a trial court ruled in their favor in October, the Justice Department appealed.

Judge Katzmann, said the deliberative process privilege is designed to encourage candor among executive agency advisers. He wrote, “the probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight.”

Katzmann cited a June 2003 presentation to state and local law enforcement officers in which Kris Kobach, counsel to the attorney general, explained the policy by detailing the memo’s contents.

A more casual reference could have left the deliberative process privilege intact, Katzmann wrote, but the detail with which Kobach discussed the document “made clear that the Attorney General and his high-level staff made a practice of using the . . . Memorandum to justify and explain the Department’s policy and to assure the public and the very state and local government officials who would be asked to implement the new policy that the policy was legally sound.”

“The record makes clear that the Department embraced the [Office of Legal Counsel]’s reasoning as its own, ” Katzmann wrote.

(National Council of La Raza v. Department of Justice; Media Counsel: Omar C. Jadwat, American Civil Liberties Union, New York City)RL

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