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Second Circuit rules DHS rightfully withheld information

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  1. Freedom of Information
The U.S. Court of Appeals in New York (2nd Cir.) affirmed a lower court’s ruling Tuesday that the U.S.

The U.S. Court of Appeals in New York (2nd Cir.) affirmed a lower court’s ruling Tuesday that the U.S. Department of Homeland Security properly withheld information requested under the federal Freedom of Information Act by Yale Law School's Lowenstein International Human Rights Project regarding documents pertaining to a government program aimed at preventing terrorist activity during the 2004 presidential elections and 2005 inauguration.

The project claimed the department discriminated against more than 2,000 immigrants, mainly from Muslim countries, and charged them with minor immigration violations, such as overstaying visas, during the operation. In the 300 cases U.S. Immigration and Customs Enforcement turned over to the project, none of the hundreds arrested were charged with terrorist activities, according to a press release from the American-Arab Anti-Discrimination Committee and Yale Law School’s National Litigation Project.

In October 2006, the project filed a FOIA request for all records relating to Immigration and Customs Enforcement’s “Operation Front Line” program. Immigration and Customs Enforcement is a division of the Department of Homeland Security.

The department first denied the FOIA requests, but later released thousands of pages of documents when the International Human Rights Project filed a complaint in the U.S. District Court for the District of Connecticut in 2006. The project then moved for release of the remaining documents. In 2009, a district court ruled the Department of Homeland Security must disclose many, but not all, of the requested documents.

The project specifically sought a four-page memorandum about the operation that she circulated in September 2004 from Mary Forman, then the acting director of Immigration and Customs Enforcement’s Office of Investigations, to special agents and deputy assistant directors. The Department of Homeland Security released most of the memo in 2008, except for paragraphs titled “Priority 1 and 2." The project appealed for the department to disclose a redacted paragraph under “Priority 1” of the memo, and a few redacted lines from “Priority 2,” the opinion said.

The department maintained that the paragraphs were properly redacted under Exemption 7(e) of FOIA. The exemption allows records compiled for law enforcement purposes to be withheld from disclosure if disclosing “techniques and procedures” would “risk circumvention of the law.”

The International Human Rights Project argued the redacted information constituted guidelines, not techniques. The language of the law stipulates that guidelines can only be withheld if their release would "risk circumvention of the law," and the project held the information could not possibly put the organization at risk so it should be released. The project also added that even if the information did constitute techniques and procedures, the phrase "could reasonably be expected to risk circumvention of the law" would also apply to guidelines and techniques, so the information should still be disclosed.

The appeals court examined the language of the law and ruled that the pertinent phrase related to circumvention of the law only applied to guidelines, not techniques. Furthermore, the court outlined the differences between guidelines and techniques, and after a review of un-redacted versions of the documents at issue, decided the redacted portions of the Forman Memorandum constituted techniques and procedures, and were therefore properly withheld.