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Judicial Watch • Judicial Watch v DHS 11 604 Memorandum Opinion Jan 27 2012

Judicial Watch v DHS 11 604 Memorandum Opinion Jan 27 2012

Judicial Watch v DHS 11 604 Memorandum Opinion Jan 27 2012

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Civil Action No. 11-00604 (CKK) 
MEMORANDUM OPINION AND ORDER 
(January 27, 2012) 
Judicial Watch, Inc. ("Judicial Watch") brings this Freedom oflnformation Act ("FOIA") action against the United States Department Homeland Security ("DHS"), seeking the disclosure records relating recent changes federal immigration enforcement priorities and their implementation Houston, Texas. Currently before the Court DHS's [12/13] Motion for Summary Judgment. Upon careful consideration the parties' submissions, the relevant authorities, and the record whole, the Motion shall GRANTED-IN-PART and DENIEDIN-PART. BACKGROUND 
This action has its origins national policy issued United States Immigration and Customs Enforcement ("ICE"), component and investigative arm ofDHS, and the subsequent response the Houston ICE Office that policy. Factual Background June 2010, John Morton ("Morton"), the Assistant Secretary ofICE located Washington, D.C., distributed four-page memorandum all ICE employees concerning civil 
"June 2010 National Policy Memorandum"). Def. Stmt. Material Facts Which There Genuine Issue ("Def.'s Stmt."), ECF No. [13-5], 1.The June 2010 National Policy 
Memorandum provides, part: addition our important criminal investigative responsibilities, ICE charged with enforcing the nation's civil immigration laws. This critical mission and one with direct significance for our national security, public safety, and the integrity our border and immigration controls. ICE, however, only has resources remove approximately 400,000 aliens per year, less than percent the estimated illegal alien population the United States. light the large number administrative violations the agency charged with addressing and the limited enforcement resources the agency has available, ICE must prioritize the use its enforcement personnel, detention space, and removal resources ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security.
DHSOOOl.The memorandum then proceeds identify three enforcement priorities: (1) 
"[a]liens who pose danger national security risk public safety," (2) "[r]ecent illegal 
entrants," and (3) "[a]liens who are fugitives otherwise obstruct immigration controls." 
DHSOOO 1-0002. However, the memorandum includes the following proviso: ]othing this 
memorandum should construed prohibit discourage the apprehension, detention, 
removal other aliens unlawfully the United States," DHS0003-in other words, those aliens 
falling outside the three categories "higher priority" targets. The memorandum addresses the 
role prosecutorial discretion balancing enforcement priorities, providing that "[t]he rapidly its responsive statement material facts, Judicial Watch admits the truth each the factual allegations proffered DHS and then proceeds adduce two additional allegations its own that are, actuality, nothing more than legal assertions. See Pl. Stmt. Material Facts Which There Genuine Issue and Dispute Filed Opp'n Def.'s Mot. for Summ. J., ECF No. [14]. 
DHS's partial production documents Judicial Watch Bates-stamped DHSOOOl through DHS0237 and part the record before the Court. See FOIA Release, ECF No. [13-1]. 
ICE employees exercise sound judgment and discretion consistent with these priorities when conducting enforcement operations, making detention decisions, making decisions about release supervision ... and litigating cases." DHS0004. 
Gary Goldman ("Goldman") the Chief Counsel the Office Chief Counsel within the Houston ICE Office ("OCC Houston"), one twenty-six field offices around the country that litigate cases immigration court, counsel ICE operational clients, and provide direction and support United States Attorneys Offices. Def.'s Stmt. ifif 38. August 12, 2010, Goldman issued four-page memorandum all attorneys OCC Houston concerning the exercise prosecutorial discretion his office (the "August 12, 2010 Memorandum"). Id. Goldman memorandum begins stating that "every attorney must determine whether [a] case may amenable the exercise prosecutorial discretion (PD) pursuant guidelines outlined the [June 2010 National Policy Memorandum]." DHS0009. then proceeds direct attorneys OCC Houston "file Motion Dismiss Proceedings ... clear [prosecutorial discretion] cases," id., and includes model use such proceedings, DHS0013-0016. The memorandum also describes process for the review pending cases the office, stating that "[t]he goal this attorney-wide tasking improve the overall efficiency the removal process ensuring the only cases [OCC Houston] litigate[s] fall within the parameters the [June 2010 National Policy Memorandum]." DHS0012. 
Goldman issued supplemental two-page memorandum OCC Houston attorneys August 16, 2010 (the "August 16, 2010 Memorandum"). Def.'s Stmt. 12. Observing that the June 2010 National Policy Memorandum altered the landscape for enforcement priorities, the August 16, 2010 Memorandum identifies the need for "guidance strive ensure 
DHSOOl After identifying "case-specific questions," the memorandum provides: 
The answer these questions and many others may the same. have been empowered with independent authority exercise 
prosecutorial discretion. work not world black and 
white but one many shades grey. This the beauty 
prosecutorial discretion. strive for consistency 
application process but the agency does not want stifle our 
independent authority exercise sound judgment matters 
prosecutorial discretion. DHS0018. The memorandum counsels that OCC Houston "must selective pursuing cases ensure [its] prosecutions focus cases national security, public safety, criminal aliens and the other classes oflCE Priority cases." DHSOOl August 20, 2010, Morton issued second national policy memorandum offering new guidance how handle removal proceedings involving aliens with applications petitions before United States Citizenship and Immigration Services (the "August 2010 National Policy Memorandum"). Def.'s Stmt. 15. The memorandum outlines framework for the expedited disposition such removal proceedings, including their potential dismissal. DHS0023. specifies that only removal cases meeting four criteria should considered for potential dismissal: (1) the alien must the subject application petition for adjustment status; 
(2) 
the alien must appear eligible for relief matter law and the exercise discretion; 

(3) 
the alien, required, must present completed application register permanent residence adjust status; and the alien must eligible for adjustment status. DHS0025. Even alien meets those criteria, the memorandum provides that "ICE may oppose relief the basis discretion." Id. August 24, 2010, Goldman distributed the August 2010 National Policy Memorandum his staff OCC Houston via e-mail. Def.'s Stmt. 18. Goldman identified the 
and August 16, 2010 Memoranda. DHS0028. According the e-mail, "[e]ffective immediately," OCC Houston's "affirmative efforts regarding prosecutorial discretion [were] focus the class cases outlined the [August 2010 National Policy Memorandum]." Id. August 25, 2010, Riah Ramlogan, the Director Field Legal Operations ICE's
Office the Principal Legal Advisor ("OPLA")sent memorandum Goldman addressing 
his interpretation the June 2010 National Policy Memorandum, reflected his August 12, 
2010 and August 16, 2010 Memoranda. Def.' Strut. 21. The memorandum provides: understand that your office has implemented the memoranda you issued terminating each case identified that did not correspond one more the three priorities identified [the June 2010 National Policy Memorandum]. However, your implementation overlooks key provision that guidance, which makes clear that ... ICE shall continue enforcing the law against
other aliens well. Your approach that our attorneys should only litigate cases within the agency's highest priorities not accurate interpretation the Assistant Secretary's guidance and not consistent with agency policy. 
DHS0029. Goldman was asked rescind his August 12, 2010 and August 16, 2010 Memoranda. Id. 
Goldman later responded informing OPLA that had already rescinded his August 12, 2010 and August 16, 2010 Memoranda, DHS0030, and explained that his "goal ... was improve the efficiencies the removal process utilizing [OCC Houston's] resources ensure that the removals the agency does conduct promote the agency's highest enforcement priorities, namely national security, public safety, and border security," DHS0032. 
OPLA provides legal advice, training, and services support ICE's mission and defends the federal government's interests administrative and federal courts. Def.' tmt. Procedural Background 
Judicial Watch submitted FOIA request DHS August 30, 2010, seeking array records concerning the review and potential dismissal pending immigration cases Houston, Texas. Def.'s Stmt. ,-i 25. DHS acknowledged receipt the request and subsequently conducted thorough search for responsive records. Id. ,-i,-i 26-36, 39-46. 
Judicial Watch commenced this action March 23, 2011. See Compl., ECF No. [1]. May 27, 2011, DHS released 237 pages spreadsheets, memoranda, and correspondence Judicial Watch, releasing pages full and releasing 191 pages part. Def.' Stmt. ,-i,-i 48, 50-51. basis for its partial withholding decisions, DHS cited FOIA Exemptions and 7(C). Id. ,-i 51. DHS did not withhold any records full. Id. ,-i 49. 
DHS filed the pending Motion for Summary Judgment August 2011. See Mem. Supp. ofDef.'s Mot. for Summ. ("Def.'s Mem."), ECF No. [13]. Included with DHS's Motion itemized index correlating each document with specific exemption and the
justification for non-disclosure, seeDef. VaughnIndex, ECF No. [13-4], well declaration from the Deputy FOIA Officer ICE's FOIA Office, seeDeel. Ryan Law ("Law 
Deel."), ECF No. [13-2]. Judicial Watch filed its opposition August 26, 2011. SeePl.'s Mem. Law Opp'n Def.'s Mot. for Summ. ("Pl.'s Opp'n"), ECF No. [14]. Judicial Watch elected not cross-move for summary judgment. DHS filed its reply September 16, 2011. SeeDef.'s Reply Mem. Supp. ofDef.'s Mot. for Summ. ("Def.'s Reply"), ECF No. [15]. Accordingly, the motion fully briefed and ripe for adjudication. exercise its discretion, the Court finds that holding oral argument would not assistance rendering decision. SeeLCvR 7(t). 
The reference the United States Court Appeals for the District Columbia's decision Vaughn Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). 
II. LEGALSTANDARD 
Congress enacted FOIA "pierce the veil administrative secrecy and open agency action the light public scrutiny." Dep the Air Force Rose, 425 U.S. 352, 361 (1976) (quotation marks omitted). However, Congress remained sensitive the need achieve balance between these objectives and the potential that "legitimate governmental and private interests could harmed release certain types information." Critical Mass Energy Project Nuclear Regulatory Comm 'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en bane) (quotation marks omitted), cert. denied, 507 U.S. 984 (1993). this end, FOIA "requires federal agencies make Government records available the public, subject nine exemptions for categories material." Milner Dep Navy,_ U.S.____) 131 Ct. 1259, 1261-62 (2011). Despite the availability such exemptions, "disclosure, not secrecy, the dominant objective the act." Rose, 425 U.S. 361. For this reason, the "exemptions are explicitly made exclusive, and must narrowly construed." Milner, 131 Ct. 1262 (quotation marks and citation omitted). 
Summary judgment proper when the pleadings, the discovery materials file, and any affidavits declarations "show[] that there genuine dispute any material fact and the movant entitled judgment matter oflaw." FED. Crv. 56(a). When presented with motion for summary judgment this context, the district court must conduct "de novo" review the record, U.S.C.  552(a)(4)(B), which "requires the court ascertain whether the agency has sustained its burden demonstrating that the documents requested ... are exempt from disclosure," Assassination Archives Research Ctr. Cent. Intelligence Agency, 334 F.3d 55, (D.C. Cir. 2003) (quotation marks omitted). "Consistent with the purpose the Act, the burden the agency justify withholding requested documents," Beck Dep Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993), and only after agency has proven that "it has fully Justice, 705 F.2d 1344, 1350 (D.C. Cir. 1983). ascertaining whether the agency has met its burden, the district court may rely upon agency affidavits declarations. Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). "If agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and not contradicted contrary evidence the record evidence the agency's bad faith, then summary judgment warranted the basis the affidavit alone." Am. Civil Liberties Union US. Dep Def, 628 F.3d 612, 619 (D.C. Cir. 2011). other words, "[u]ncontradicted, plausible affidavits showing reasonable specificity and logical relation the exemption are likely prevail." Ancient Coin Collectors Guild US. Dep't a/State, 641F.3d 504, 509 (D.C. Cir. 2011). 
III. DISCUSSION 
The parties' dispute here narrow one. Judicial Watch challenges only DHS's reliance upon FOIA Exemption basis for withholding information from the spreadsheets,
memoranda, and correspondence responsive its request for records.Exemption protects "inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with the agency." U.S.C.  552(b)(5). Over the years, has been construed protecting "those documents, and only those documents, normally privileged the civil discovery context." Nat'! Labor Relations Bd. Sears, Roebuck Co., 421 U.S. 132, 149 (1975). provides protection "materials which would protected under the attorney-client privilege, the attorney work-product privilege, the executive 'deliberative 
Judicial Watch does not contest the adequacy DHS's search for records the agency's reliance upon Exemptions and basis for non-disclosure. See Def.' Mem. Pl.' Opp'n n.2. 
1980) (citations omitted). 
Under the federal common law, the proponent bears the burden demonstrating the applicability any asserted privilege. Subpoena Duces Tecum Issued Commodity Futures Trading Comm 'n, 439 F.3d 740, 750 (D.C. Cir. 2006). The nature that burden clear: the proponent must establish the claimed privilege with "reasonable certainty." Fed. Trade Comm TRW, Inc., 628 F.2d 207, 213 (D.C. Cir. 1980). so, the proponent must adduce competent evidence support "each the essential elements necessary support claim privilege." Alexander Fed. Bureau Investigation, 192 F.R.D. 42, (D.D.C. 2000). Consistent with these strictures, the proponent "must offer more than just conclusory statements, generalized assertions, and unswom averments its counsel." Application Veiga, 746 Supp. 27, (D.D.C. 2010). Where the proponent fails adduce sufficient facts permit the district court conclude with reasonable certainty that the privilege applies, its burden has not been met. TRW, 628 .2d 213. this case, DHS relies three recognized privileges: (1) the attorney-client privilege; 
(2) the work product doctrine; and (3) the "deliberative process" privilege. The Court addresses each privilege tum. The Attorney-Client Privilege 
"The attorney-client privilege protects confidential communications from clients their attorneys made for the purpose securing legal advice services," well "communications from attorneys their clients the communications rest confidential information obtained from the client." Tax Analysts Internal Revenue Serv., 117 F.3d 607, 618 (D.C. Cir. 1997) 
attorney may the agency lawyer." Id. order demonstrate the applicability the privilege, the proponent must establish each the following essential elements: (1) the holder the privilege is, sought be, client; (2) the person whom the communication made member the bar his subordinate and, connection with the communication issue, acting his her capacity lawyer; (3) the communication relates fact which the attorney was informed his client, outside the presence strangers, for the purpose securing legal advice; and the privilege has been claimed the client. Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984). Additionally, "fundamental prerequisite the assertion the privilege" "confidentiality both the time the communication and maintained since." Coastal States, 617 F.2d 863; accord Fed. Trade Comm GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002). 
Judicial Watch contests DHS's reliance the attorney-client privilege basis for withholding information from total seventeen documents-specifically, DHSOOlO, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHSOl 12. See Pl.'s Opp'n 11. Judicial Watch contends that DHS's showing suffers from fatal defect because "[n]owhere ... does [DHS] specify that the withheld information was not also shared some point with third parties." Id. The Court agrees. DHS, the proponent the attorney-client privilege, bears the burden "affirmatively establish[ing] confidentiality." Coastal States, 617 F.2d 863; see also Def.'s Reply (conceding that the agency must show that was "reasonably careful keep [the] confidential information protected from general disclosure.") (quotation marks omitted). However, DHS's 
communications issue has been maintained. Coastal States, 617 F.2d 863. True, DHS's 
Vaughn Index and agency declaration recite other elements the attorney-client privilege, but 
they not speak confidentiality connection with the information withheld from Judicial
Watch, even conclusory terms.SeeDef.'s Vaughn Index 5-17; Law Deel. 34. the final analysis, FOIA places the burden the agency prove the applicability claimed privilege, and this Court not free assume that communications meet the confidentiality
requirement.Mead Data Cent., Inc. US. Dep Air Force, 566 F.2d 254 (D.C. Cir. 1977). the extent DHS intends rely the attorney-client privilege basis for nondisclosure, must affirmatively show confidentiality. The Court shall not prejudge what form that showing must take, other than say that DHS must adduce competent evidence establishing "confidentiality both the time the communication and maintained since." Coastal States, 617 F.2d 863. 
But there more far-reaching problem with DHS's showing, one that effectively prevents the Court from concluding that the agency has "fully discharged its disclosure obligations." Weisberg, 705 F.2d 1350. identifying its justification for withholding information pursuant the attorney-client privilege, DHS's Vaughn Index simply parrots selected elements the attorney-client privilege. Almost without exception, DHS asserts, without further elaboration, that "the attorney-client privilege appl[ies] because this document was created agency attorneys ... provide legal analysis and advice." Nor does cross 
The Court does not credit the unsworn averments ofDHS's counsel. 

That especially true where, here, agency cites the attorney-client privilege basis for withholding communications running from the attorney the client, which are eligible for protection only they rest confidential information obtained from the client. See Tax Analysts, 117F.3d 618. 
referencing DHS's separate declaration elucidate matters further. There, single, unilluminating paragraph, DHS's declarant broadly asserts that "communications between [sic] ICE attorneys and ICE employees" have been withheld and that "[t]he communications consisted attorney employee providing information for the purpose seeking legal advice and counsel rendering advice." Law Deel. 34. Even when situating these descriptions within the context DHS's partial production, "the descriptions the documents are brief and such general nature that they fail give the court any basis for determining whether the privilege was properly invoked." Alexander, 192 F.R.D. 45. 
Three the more egregious examples will illustrate the problem. First, DHS0057 one-page memorandum Goldman from his Deputy Chief Counsel OCC Houston. Apart from the subject line, which reads "Prosecutorial Discretion," everything substantive has been redacted from the document. Neither DHS's Vaughn Index nor its agency declaration provide any meaningful context, leaving the Court with what amounts little more than conclusory claim privilege. Second, DHS0058-0059 two-page excerpt from OCC Houston's Procedural Manual addressing the exercise prosecutorial discretion. DHS does not even identify the author(s) and recipient(s), let alone explain the circumstances surrounding the communication. Under these circumstances, the Court cannot meaningfully judge whether the privilege applies. Third, and finally, DHS0064 one-page e-mail from Goldman approximately two dozen recipients, the identities the vast majority which are left unstated. The subject line the e-mail reads, "Notes from Leadership meeting," and the first line the body states, "This how the various presenters presented their messages us." The remainder the message has been redacted and DHS's Vaughn Index and agency declaration provide 
privilege. the end, DHS's generalized and non-specific showing fails satisfy the Court that the attorney-client privilege has been properly invoked connection with the information withheld from Judicial Watch. For this reason, the Court shall DENY DHS's [12/13] Motion for Summary Judgment insofar seeks ruling that information has been appropriately withheld from DHSOOl DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS00800081, DHS0082, DHS0085, DHS0093, and DHSOl the basis the attorney-client privilege. 
Where, here, agency's descriptions fail affirmatively establish each the essential elements the claimed privilege, the district court has the discretion order disclosure afford the agency additional opportunity fully discharge its burden. this case, the Court mindful that Judicial Watch has not cross-moved for summary judgment and, even based the limited record now before the Court, appears that DHS likely has viable privilege claims assert this action. Accordingly, the Court shall exercise its discretion permit DHS further and final opportunity establish the applicability the attorney-client privilege the information withheld from Judicial Watch. The Work Product Doctrine 
The work product doctrine protects materials "prepared anticipation litigation for trial for another party its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, agent)." FED. CIV. 26(b)(3)(A). assessing whether the proponent has carried its burden, the relevant inquiry "whether, light the nature the document and the factual situation the particular case, the document can fairly said have 
Comm Lutheran Soc. Servs., 186 F.3d 959, 968 (D.C. Cir. 1999) (quotation marks omitted). This inquiry encompasses two related but distinct concepts--one question timing and the other question intent. US. rel. Fago Mortg. Corp., 242 F.R.D. 16, (D.D.C. 2007). The former, the temporal element, asks whether there was subjective belief that litigation was real possibility" the time the document was prepared and whether that belief was "objectively reasonable." Lutheran Soc. Servs., 186 F.3d 968 (quotation marks omitted). The latter, the motivational element, demands that the document prepared obtained because ofthe prospect litigation. Id. this respect, the proponent bears the burden "showing that the documents were prepared for the purpose assisting attorney preparing for litigation, and not some other reason." Alexander, 192 F.R.D. 46. "[T]he documents must least have been prepared with specific claim supported concrete facts which would likely lead litigation mind." Coastal States, 617 F.2d 865. this Circuit, "[i]f document fully protected work product, then segregability not required." Judicial Watch, Inc. Dep 
8Justice, 432 F.3d 366, 371 (D.C. Cir. 2005).
Judicial Watch contests DHS reliance the work product doctrine basis for withholding information from total twenty documents-specifically, DHSOO 10, DHS00310035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DH00650066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, DHSOl 12, DHS0201-0202, DHS0203-0235, and DHS0236-0237. See Pl.'s Opp'n 6-8. doing, Judicial Watch divides its argument between three spreadsheets relating the civil discovery context, the work product privilege qualified and may overcome showing of"substantial need." FED. CIV. 26(b)(3)(A)(ii). However, that limitation does not apply under FOIA. Williams Connolly Secs. Exch. Comm 'n, 662 F.3d 1240, 1243 
(D.C. Cir. 2011). 
communications, the other hand. The Court shall likewise divide its analysis. 

The focus Judicial Watch's challenge three spreadsheets relating immigration cases handled OCC Houston-specifically, DHS0201-0202, DHS0203-0235, and DHS02360237. See PI. Opp'n 6-7. The information these spreadsheets was compiled part OCC Houston's efforts conform the June 2010 and August 2010 National Policy Memoranda, and particular the office's efforts determine which pending and reasonably foreseeable immigration cases, any, were candidates for potential dismissal consistent with the
exercise prosecutorial discretion.The information withheld appears columns labeled "Basis( es) for Seeking Dismissal," DHS201-0202, "Reason for filing Motion," DHS0203-0235, "Type Review," DHS0203-0235, "Basis Motion," DHS0236-0237, and "Brief Explanation (and Other Notes)," DHS0236-0237. its submissions, DHS specifically represents that the information these columns was "derived entirely from attorney notes" that were made preparation for litigation. Law Deel. 36; see also Def.'s Vaughn Index 17-18 (stating that each field contains information prepared agency attorneys anticipation potential litigation and provide legal analysis and advice). 
While ultimately immaterial the instant motion, the three spreadsheets differ slightly their precise content. The first spreadsheet sets forth information identifying the location the proceeding and the alien involved, all which has been disclosed, while final column, which has been redacted, appears identify the alien's past criminal convictions. DHS0201-0202. The second spreadsheet sets forth information identifying the proceeding, the alien and counsel involved, the relief sought the alien, the status OCC Houston's motion dismiss, and the alien's response the motion, all which has been disclosed, while two columns identifying the reason for the filing the motion and the type review conducted have been withheld from disclosure. DHS0203-0235. The third spreadsheet, titled "Motions Terminate Filed OCC (Fiscal Year 2011 )," identifies the proceeding, the alien and office involved, and the status OCC Houston's motion dismiss, all which has been disclosed, while two columns identifying the basis the motion and brief explanation have been redacted. DHS0236-0237. 
spreadsheets. First, Judicial Watch contends that the information was not prepared "in anticipation oflitigation." The thrust Judicial Watch's argument this: (i) "the entire point [DHS's] new policy was terminate much litigation possible dismissing cases against certain immigrants," (ii) the information the spreadsheets was gathered decide whether terminate litigation, (iii) therefore, the information was not prepared "in anticipation litigation." PL's Opp'n The argument lacks merit. Material may still said prepared "in anticipation litigation" even when attorney deciding whether not pursue case, including under circumstances analogous those presented here. See, e.g., Michael's Piano, Inc. Fed. Trade Comm 'n, F.3d 138, 145 (2d Cir.) (concluding that the work product doctrine still applied documents prepared after government counsel "decided not recommend enforcement litigation"), cert. denied, 413 U.S. 1015 (1994); Kishore US. Dep ofJustice, 575 Supp. 243, 259-60 (D.D.C. 2008) (concluding that the work product doctrine applied records explaining the government's reasons for declining prosecute); Heggestad US. Dep't ofJustice, 182 Supp. (D.D.C. 2000) (rejecting argument that documents recommending the declination prosecution are not subject work product doctrine); Cities Serv. Co. Fed. Trade Comm 'n, 627 Supp. 827, 832 (D.D.C. 1984) (finding that materials relating potential settlement are eligible for work product protection), aff'd, 778 F.2d 889 (D.C. Cir. 1985). DHS has satisfied its burden showing that the 
information was prepared anticipation the pending and reasonably foreseeable immigration cases handled OCC Houston. Judicial Watch's second argument fares better. Here, similar the argument made with respect the attorney-client privilege, Judicial Watch argues that DHS "has failed 
parties." Pl.'s Opp'n with the attorney-client privilege, disclosure may waive the 
protections the work product doctrine. However, courts employ slightly different inquiry 
this context. When comes the work product doctrine, disclosure third party constitutes 
waiver when the disclosure made under circumstances inconsistent with the maintenance 
secrecy from one's adversary. United States Deloitte LLP, 610 F.3d 129, 140 (D.C. Cir. 
2010). Pursuant this so-called "maintenance secrecy" standard, courts inquire whether the 
proponent "had reasonable basis for believing that the recipient would keep the disclosed 
material confidential." Id. 141; accord Rockwell Int'! Corp. US. Dep Justice, 235 F.3d 
598, 605 (D.C. Cir. 2001). 
DHS mischaracterizes Judicial Watch's argument one arising under the "prior disclosure" doctrine frequently encountered FOIA jurisprudence, which provides that "[i]f the government has officially acknowledged information, FOIA plaintiff may compel disclosure that information even over agency's otherwise valid exemption claim." Am. Civil Liberties Union, 628 F.3d 620. Were this Judicial Watch's argument, the Court agrees that Judicial Watch would bear the burden meeting the rigors the "prior disclosure" doctrine, which requires the plaintiff show that the specific information seeks already the public domain official disclosure. The Court would also agree that Judicial Watch has not met this exacting standard. But Judicial Watch's argument different. targeted DHS's antecedent burden, the proponent the privilege, establish the applicability the work product doctrine. See Pl.'s Opp'n 
Nonetheless, DHS's essential point correct: the burden lies with Judicial Watch establish that DHS has waived the protections the work product doctrine. That because, 
the burden proving non-waiver.Ecuadorian Plaintiffs Chevron Corp., 619 F.3d 373, 379 
n.10 (5th Cir. 2010); accord US. Inspection Servs., Inc. Engineered Solutions, LLC, 268 
F.R.D. 614, 617-18 (N.D. Cal. 2010); Greene, Tweed Del., Inc. DuPont Dow Elastomers, L.L.C., 202 F.R.D. 418, 423 (E.D. Pa. 2001); Johnson Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000); Aull Cavalcade Pension Plan, 185 F.R.D. 618, 624 (D. Colo. 1998). Instead, the party seeking pierce the privilege must show that the holder the privilege disclosed work product third party under circumstances "inconsistent with the maintenance secrecy from the disclosing party's adversary." Deloitte, 610 F.3d 140 (quotation marks omitted). Judicial Watch has failed discharge this burden, offering only its unadorned speculation that DHS "obviously had some communication with the [affected immigrant] about the content and reason[s] for the motion" and that "[i]t possible that some the information contained these spreadsheets has been shared with [immigration attorneys the Houston area] well." Pl.' Opp'n Despite the conjecture from its counsel, Judicial Watch does not adduce any competent evidence support finding that the specific information redacted from the three spreadsheets was shared with third parties under circumstances inconsistent with the maintenance secrecy. Accordingly, its waiver argument fails. short, Judicial Watch has failed identify colorable basis for rejecting DHS's claim that the work product privilege applies the information withheld from the three spreadsheets. Meanwhile, DHS has proffered sufficient factual basis for this Court conclude that, light 
The difference treatment part product the different purposes served the two privileges: whereas the attorney-client privilege "protects the attorney-client relationship safeguarding confidential communications, [the work product doctrine] promotes the adversary process insulating attorney's litigation preparation from discovery." Deloitte, 610 F.3d 139-40. 

can "fairly said have been prepared obtained because the prospect litigation." Lutheran Soc. Servs., 186 F.3d 186 (quotation marks omitted). Therefore, the Court shall GRANT DHS's [12/13] Motion for Summary Judgment insofar seeks ruling that information has been appropriately withheld from DHS0201-0202, DHS0203-0235, and DHS0236-0237 the basis the work product doctrine. Memoranda and Other Communications 
Judicial Watch also challenges DHS's reliance upon the work product doctrine basis for withholding information from array memoranda and other communicationsspecifically, DHSOOlO, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DH0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS00800081, DHS0082, DHS0085, DHS0093, and DHSOl 12. See Pl.'s Opp'n 7-8. before, Judicial Watch claims that the information these documents must disclosed because DHS "has failed show that they were prepared anticipation litigation and because nowhere ... does [DHS] state that these documents were never shared with third parties." Id. For the reasons 
just discussed, the Court unpersuaded Judicial Watch's waiver argument. Nonetheless, the Court finds that DHS's evidentiary showing generalized and non-specific these memoranda and communications that fails satisfy the Court that the work product doctrine has been properly invoked basis for non-disclosure. 
Just did with the attorney-client privilege, DHS's Vaughn Index simply parrots elements the work product doctrine when identifying its justification for withholding information. Almost without exception, DHS asserts, without any meaningful measure detail, that the "work-product privilege ... appl[ies] because this document was created agency 

DHS's separate declaration provides little more detail, separating the memoranda and 
communications into eight general categories, see Law Deel. 36, but DHS fails correlate 
these categories specific records identified its Vaughn Index. Even had, the 
descriptions some these categories are generic that, even when they are considered 
alongside DHS's partial production, they not demonstrate that the information withheld can 
"fairly said have been prepared obtained because the prospect oflitigation." Lutheran 
Soc. Servs., 186 F.3d 186 (quotation marks omitted). 
For example, one the categories identified DHS includes information involving 
"discussions litigation strategies ... centering around prosecutorial discretion." Law Deel. 
36. This Court "mindful the fact that the prospect future litigation touches virtually every object prosecutor's attention, and that the work product exemption, read over-broadly, could preclude almost all disclosure from agency with responsibilities for law enforcement." SafeCard Servs., Inc. Secs. Exch. Comm 'n, 926 F.2d 1197, 1203 (D.C. Cir. 1991) (quotation marks and citation omitted). Absent more particularized showing from DHS, the Court cannot conclude that DHS has applied the appropriate standard this case: minimum, "the documents must least have been prepared with specific claim supported concrete facts which would likely lead litigation mind." Coastal States, 617 F.2d 865. 
Illustrative this regard DHS0057, one-page memorandum Goldman from his Deputy Chief Counsel Houston. Apart from the subject line, which reads "Prosecutorial Discretion," everything substantive has been redacted from the document. DHS's Vaughn Index provides meaningful elaboration the nature the document and the Court left speculate which the eight categories, any, that are identified DHS' agency 
product doctrine applies, but nobody disputes that "conclusory assertions privilege will not 
suffice." Coastal States, 617 F.2d 861; see also Senate the Commonwealth P.R. U.S. 
Dep Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) ("[W]here factual support provided for essential element the claimed privilege shield, the label 'conclusory' surely apt.") 
(emphasis omitted). 
Simply put, DHS generalized and non-specific showing fails satisfy the Court that the work product doctrine has been properly invoked connection with the information withheld from Judicial Watch. For this reason, the Court shall DENY DHS's [12/13] Motion for Summary Judgment insofar seeks ruling that information has been appropriately withheld from DHSOOlO, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DH0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS00800081, DHS0082, DHS0085, DHS0093, and DHSOl the basis the work product doctrine. before, the Court shall afford DHS further and final opportunity establish the applicability the work product doctrine the information withheld from these documents. The Deliberative Process Privilege 
The deliberative process privilege protects "documents reflecting advisory opinions, recommendations and deliberations comprising part process which governmental decisions and policies are formulated." Dep Interior Klamath Water Users Protective Ass 'n, 532 U.S. (2001) (quotation marks omitted). recognizes "that officials will not communicate candidly among themselves each remark potential item discovery and front page news, and its object enhance the quality agency decisions protecting open and frank discussion among those who make them." Id. 8-9 (quotation marks and citations 
protect specific materials." Dudman Commc 'ns Corp. Dep Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). qualify for protection under the privilege, materials must "both 'predecisional' and 'deliberative."' Pub. Citizen, Inc. Office Mgmt. and Budget, 598 .3d 865, 874 (D.C. Cir. 2010) (quoting Coastal States, 617 F.2d 866). document predecisional "if was generated before the adoption agency policy and deliberative reflects the give-and-take the consultative process." Judicial Watch, Inc. Food Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006) (quotation marks omitted). deliberative, information "must reflect the personal opinions the writer rather than the policy the agency." Morley Cent. Intelligence Agency, 508 F.3d 1108, 1127 (D.C. Cir. 2007) (quotation marks omitted). 
Judicial Watch challenges DHS's reliance upon the deliberative process privilege basis for withholding information from total seventeen documents-specifically DHS0030, DHS0031-0035, DHS0046, DHS0053-0054, DHS0056, DHS0057, DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHSOl 12. See Pl. Opp'n Judicial Watch tenders series arguments why disclosure the information redacted from these documents appropriate, including contention that DHS has failed release all reasonably segregable information. See id. 9-10. this regard, the Court shares Judicial Watch's concern. contrast the work product doctrine, "[f]actual material not protected under the deliberative process privilege unless 'inextricably intertwined' with the deliberative material." Judicial Watch, 432 F.3d 372 (quoting Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)). Here, DHS avers generally its submissions that conducted "line-by-line" 
Law Deel. 45. addition, DHS represents that the communications withheld under the 
deliberative process privilege are "largely opinion," but the agency concedes that "they also 
contain some factual material selected the authors which [sic] are [sic] 'inextricably 
intertwined' with deliberative material that its disclosure would compromise the confidentiality deliberative information." Id.  31. This empty invocation the segregability standard, 
which DHS never couples with more detailed representation relating specific records, does 
not satisfy the Court that DHS has applied the correct standard. 
Indeed, without deciding the matter, the Court's review ofDHS's partial production reveals that there some cause for concern. For example, DHS0053-0054 two-page memorandum from Goldman superior OPLA accompanying one the spreadsheets relating immigration cases handled OCC Houston. the first page the memorandum, Goldman sets forth summary the data the spreadsheets. DHS0053. DHS does not appear dispute that this information "factual" nature, but makes meaningful effort explain why the information inextricable from deliberative material how its disclosure would reveal "advisory opinions, recommendations [or] deliberations comprising part process which governmental decisions and policies are formulated." Klamath, 532 U.S. Where DHS has withheld factual information under the deliberative process privilege, the Court requires more nuanced explanation why the information inextricable from deliberative material. DHS may not simply parrot the legal standard governing segregability. 
Moreover, the Court agrees with Judicial Watch that DHS has failed provide sufficient factual context for much the information withheld under the deliberative process privilege allow the Court conclude that the privilege has been properly invoked. its Vaughn Index, 
DHS consistently recites the general elements the deliberative process privilege without explaining how they apply the document question. While DHS's separate declaration divides the documents withheld this basis into four general categories, Law Deel.  31, DHS never correlates these categories specific records identified its VaughnIndex. Oftentimes, the descriptions are generic and non-specific that, even when considered alongside DHS's partial production, the Court cannot meaningfully assess whether the information withheld predecisional and deliberative. 
For example, DHS0046 one-page e-mail from Goldman one his superiors OPLA. The e-mail's subject line reads, "Discussion," the first line states, know how busy you must thought would simply write you very brief email clarify one issue," and the final line provides, "Thanks for supporting the field." DHS0046. its VaughnIndex, DHS merely recites legal boilerplate about the deliberative process privilege, seeDef.' VaughnIndex and the Court left guess which, any, the four categories identified the separate declaration might apply, see Law Deel.  31. When all said and done, the Court left with 
DHS's naked claim that the privilege has been properly invoked, and this obviously does not suffice. light these concerns about the adequacy ofDHS's descriptions and its application the segregability standard, which least theoretically could affect all DHS's withholding decisions under the deliberative process privilege, the Court declines rule the merits any DHS's withholding decisions this time. DHS shall first afforded opportunity provide more particularized evidentiary showing. Nonetheless, the Court takes this opportunity address some the other issues raised the parties the hopes narrowing the areas dispute the future. 
'qualified privilege and can overcome showing sufficient need."' Pl.'s Opp'n (quoting Sealed Case, 121 F.3d 737). While this accurate statement the law, Judicial Watch conveniently omits important proviso-namely, that "[t]his characteristic the deliberative process privilege not issue FOIA cases." Sealed Case, 121 F.3d 737 n.5. The reasons for this limitation are two-fold. the one hand, FOIA's exclusive concern with what must and must not made public and, result, the general rule that "the particular purpose for which FOIA plaintiff seeks information not relevant." Id. the other hand, interpretation Exemption that would require courts balance private litigant's need against agency's privilege claim some "hypothetical litigation" would unworkable. Sears, 421 U.S. 149 n.16. Accordingly, the relevant question this context whether the information subject the privilege claim would "normally" "routinely" disclosed private litigation. 
Second, Judicial Watch fails recognize that even documents dated after decision has been made may still eligible for protection under the deliberative process privilege. Courts recognize that "[a]gencies are, and properly should be, engaged continuing process examining their policies" and should "wary interfering with this process." Sears, 421 U.S. 151 n.18. Even after path has been cut agency, "it the very process debating, shaping, and changing ... policy that needs candor, vigorous to-and-fro, and freedom expression." Sierra Club US. Dep Interior, 384 Supp. (D.D.C. 2004); see also Gordon Fed. Bureau Investigation, 388 Supp. 1028, 1038 (N.D. Cal. 2005) ("That agency 'deliberating' whether how change existing policy, opposed deliberating whether adopt entirely new policy, does not mean the deliberations fall 
"may still predecisional and deliberative with respect other, nonfinal agency policies." 
Judicial Watch, 449 F.3d 151. Furthermore, while "[a] document that does nothing more than 
explain existing policy cannot considered deliberative," Pub. Citizen, 598 F.3d 876, 
even "[p Jost-decisional documents properly fall under the deliberative process privilege when 
they recount reflect pre-decisional deliberations,'' Judicial Watch Inc. US. Dep 
Treasury, 796 Supp. 13, 31(D.D.C.2011) (citing Citizens for Responsibility Ethics 
Wash. US. Dep Justice, 658 Supp. 217, 234 (D.D.C. 2009)). 
Third, and finally, Judicial Watch intimates that the Court should inquire whether the disclosure specific information would harm the interests animating the deliberative process privilege. See Pl.'s Opp'n 8-9. However, "Congress enacted FOIA Exemption ... precisely because determined that the disclosure material that both predecisional and deliberative does harm agency's decisionmaking process," and not the district court's "role ... second-guess that congressional judgment case-by-case basis." McKinley Bd. Governors Fed. Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011), cert. denied, _U.S._, 2012 33340 (Jan. 2012). result, the scope this Court's inquiry properly confined asking whether DHS has satisfied its burden showing the applicability the privilege-that is, whether the information withheld both predecisional and deliberative. Once that inquiry complete, the Court's task end. 
Regardless, the Court reiterates that declines rule the merits DHS' decision withhold certain information under the deliberative process this time. DHS's generalized and non-specific showing fails satisfy the Court that the deliberative process has been properly invoked that DHS has applied the correct segregability standard. Accordingly, the Court shall 

DENY DHS's [12/13] Motion for Summary Judgment insofar seeks ruling that information has been appropriately withheld from DHS0030, DHS0031-0035, DHS0046, DHS0053-0054, DHS0056, DHS0057, DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHSOl the basis the deliberative process privilege. before, the Court shall afford DHS further and final opportunity establish that the deliberative process privilege applies the information withheld from these documents and that all reasonably segregable information has been released Judicial Watch. 
IV. CONCLUSION AND ORDER 
For the reasons set forth above, is, this 27th day January, 2012, hereby 
ORDERED that DHS's [12/13] Motion for Summary Judgment GRANTED-INPART and DENIED-IN-PART. Specifically, the motion GRANTED insofar seeks ruling that information has been appropriately withheld from DHS0201-0202, DHS0203-0235, and DHS0236-0237 the basis the work product doctrine. Meanwhile, the motion DENIED insofar seeks ruling that information has been appropriately withheld from (a) DHSOOlO, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHSOl the basis the attorney-client privilege; (b) DHSOOlO, DHS0031-0035, DHS0053-0054, DHS0057, DHS0058-0059, DHS0062, DHS0063, DHS0064, DH0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHSOl the basis the work product doctrine; and 
(c) DHS0030, DHS0031-0035, DHS0046, DHS0053-0054, DHS0056, DHS0057, DHS0063, 
DHS0064, DHS0065-0066, DHS0067-0068, DHS0069, DHS0070-0071, DHS0080-0081, DHS0082, DHS0085, DHS0093, and DHSOl the basis the deliberative process privilege. FURTHER ORDERED that the Court shall afford DHS a.final opportunity discharge its burden establishing the applicability the remaining claimed privileges the information withheld from Judicial Watch. The parties shall promptly meet and confer and, later than February 2012, file Joint Status Report proposing schedule for further proceedings, which shall include, minimum, proposed deadlines for DHS' production revised Vaughn Index and agency declaration and for the briefing renewed motion for summary judgment. ORDERED. 
Date: January 27, 2012 

United States District Judge