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Tuffly v DHS response brief 15342

Tuffly v DHS response brief 15342

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Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
No. 16-15342
_____________________________________________________________________________
____________________________________________________________________________ THE UNITED STATES COURT APPEALS
FOR THE NINTH CIRCUIT
_____________
EDWARD TUFFLY, AKA BUD TUFFLY,
Plaintiff-Appellant,
UNITED STATES DEPARTMENT
HOMELAND SECURITY
Defendant-Appellee.
_____________ APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT ARIZONA
_____________
BRIEF FOR APPELLEE
_____________
BENJAMIN MIZER
Principal Deputy Assistant
Attorney General
JOHN LEONARDO
United States Attorney
MATTHEW COLLETTE
(202) 514-4214
ROBERT KAMENSHINE
(202) 514-2494
Attorneys, Appellate Staff
Civil Division, Room 7213
Department Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
__________________________________________________________________________________________
__________________________________________________________________________________________
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
TABLE CONTENTS
STATEMENT SUBJECT MATTER AND APPELLATE JURISDICTION ....
STATEMENT THE ISSUE PRESENTED FOR REVIEW ..............................
STATEMENT THE CASE .................................................................................
STATEMENT FACTS .......................................................................................
Facts This Case ...............................................................................
District Court Opinion .......................................................................
SUMMARY ARGUMENT ................................................................................
STANDARD REVIEW ......................................................................................
ARGUMENT ............................................................................................................
THE DISTRICT COURT, SUSTAINING THE WITHHOLDING THE
REQUESTED NAMES THE RELEASED DETAINEES, PROPERLY
BALANCED THEIR PRIVACY INTEREST AGAINST THE PUBLIC
INTEREST DISCLOSURE .................................................................................
The District Court Properly Found That The Released Detainees
Have Significant Privacy Interest The Withholding Their
Names.................................................................................................
Standards For Identifying And Weighing Privacy Interest .....
Privacy Interest Here Significant .........................................
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
The District Court Properly Found That The Interest Disclosure The Detainees Names Was Only Marginal ..............................
Standards For Identifying And Weighing Public Interest .......
Public Interest Here Marginal Best, That AlreadyReleased Information Fully Allows Assessment ICE
Decision-Making......................................................................
CONCLUSION .......................................................................................................
CERTIFICATE COMPLIANCE
CERTIFICATE RELATED CASES
CERTIFICATE SERVICE
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
TABLE AUTHORITIES
Cases:
American Immigration Lawyers Ass Executive Office For Immigration
Review, No. 15-5201, Slip. Op. (D.C. Cir. July 29, 2016) .............................16
Bibles Oregon Nat. Desert Ass 519 U.S. 355 (1997) ......................................15
Department the Air Force Rose,
425 U.S. 352 (1976) .............................................................................................
Detroit Free Press U.S. Dep Justice,
No. 14-1670, 2016 3769970 (July 14, 2016) ...............................................
Forest Serv. Emps. for Envtl. Ethics U.S. Forest Serv.,
524 F.3d 1021 (9th Cir. 2008) .................................................... 10, 11, 13, 14,
Lahr NTSB,
569 F.3d 964 (9th Cir. 2009) .............................................................. 15, 16,
Lane Dep the Interior,
523 F.3d 1128 (9th Cir. 2008) .................................................................. 15,
National Ass Retired Federal Employees (NARFE) Horner,
879 F.2d 873 (D. Cir. 1989), cert. denied, 494 U.S. 1078 (1990) ..................
National Archives Records Admin. Favish,
541 U.S. 157 (2004) ..................................................................... 10, 14, 16,
Painting Indus. Hawaii Market Recovery Fund U.S. Dep the Air Force, F.3d 1479 (9th Cir. 1994) ..............................................................................
Prudential Locations LLC U.S. Dep Hous. Urban Dev.,
739 F.3d 424 (9th Cir. 2013) ...........................................................................
Schrecker Dep Justice,
349 F.3d 657 (D.C. Cir. 2003) ...........................................................................
iii
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
U.S. Department Justice Reporters Comm. for Freedom the Press,
489 U.S. 749 (1989) ..................................................... 10, 11,13,14,15,16
U.S. Dep Def. FLRA,
510 U.S. 487 (1994) .......................................................................................
U.S. Dep State Ray,
501 U.S. (1991) ....................................................................................... 13,
Union Leader Corp. U.S. Dep Homeland Sec.,
749 F.3d (1st Cir. 2014)..................................................1, 11, 12, 13, 19,
Statutes:
Freedom Information Act: U.S.C. 552(a)(4)(B) ..............................................................................................1 U.S.C. 552(b)(6)................................................................................................1, U.S.C. 552(b)(7)(C) ..........................................................................................2, U.S.C. 1291 ...........................................................................................................1
Rule:
Fed. App. 4(a)(1)(A) ........................................................................................
Other Authorities:
http://www.judicialwatch.org/wp-content/uploads/2015/Tuffly-v-DHS-06247Records-r_2015-ICFO-06247.pdf (visited November 2015); Judicial
Watch Document Archive, Tuffly DHS 06247 Records List
(created July 13, 2105) ................................................................................
http://www. judicialwatch.org/document-archive/tuffly-v-dhs-06247-recordslist/ ..........................................................................................................................
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page THE UNITED STATES COURT APPEALS
FOR THE NINTH CIRCUIT
_____________
No. 16-15342
_____________
EDWARD TUFFLY, AKA BUD TUFFLY,
Plaintiff-Appellant,
UNITED STATES DEPARTMENT
HOMELAND SECURITY,
Defendant-Appellee.
_____________
BRIEF FOR APPELLEE
_____________
STATEMENT SUBJECT MATTER AND
APPELLATE JURISDICTION
The district court had subject matter jurisdiction under the Freedom
Information Act (FOIA), U.S.C. 552(a)(4)(B). This Court has jurisdiction under U.S.C. 1291. Appellant filed timely notice appeal March 2016. See
Fed. App. 4(a)(1)A).
STATEMENT THE ISSUE PRESENTED FOR REVIEW
Mr. Tuffly filed FOIA request asking the Department Homeland
Security (DHS), Immigration and Customs Enforcement (ICE), release
information about all detainees released from detention facilities Arizona due
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page fiscal uncertainty. Aplnts. Br. DHS released 401 pages responsive
records, but redacted the names and identifying information the released
detainees.
The question presented whether the district court, sustaining the
withholding DHS the requested names under FOIA Exemption7(C), U.S.C.
552(b)(7)(C), properly balanced those persons interest personal privacy against
the public interest disclosure.
STATEMENT THE CASE
Edward Tuffly, the treasurer the National Border Patrol Council, the
union that represents Border Patrol agents, made FOIA request seeking
information regarding ICE release detainees from federal facilities Arizona
for budgetary reasons during specified time period. The detainees were then
removal proceedings.
During the pendency this case, ICE released information pertaining 149
detainees spreadsheet consisting two tabs, and 401pages the requested
information. However, personal privacy grounds, ICE redacted the names of,
and other potentially identifying information about the released detainees.
Following that release, DHS moved for summary judgment, which the district
court granted because the redacted names were exempt from disclosure under
FOIA Exemption 7(C). Mr. Tuffly then filed the present appeal.
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
STATEMENT FACTS Facts This Case February 2013, ICE announced that fiscal uncertainty had led the
agency review the status its detainees ensure that detention levels did not
exceed its budget. light that review, ICE ended the detention
several hundred detainees, then removal proceedings, favor less costly
methods supervision. Id. Finally, ICE announcement explained that its
[p]riority for detention would remain[] serious criminal offenders and other
individuals who pose significant threat public safety. Id.; 14.
Mr. Tuffly made FOIA request ICE for information sufficient
identify all persons released from five Arizona detention facilities for budgetary
reasons, well additional information pertaining those persons.
response, ICE released one Excel spreadsheet consisting two tabs, and
401 pages records. Id. 24, 27. That information for 149 persons included
alien file numbers, dates release, criminal history, and the status immigration
court proceedings. Id. Redacted were the names the persons released,
well other information that would make possible identify the released
individuals. Id. But the only information Mr. Tuffly still seeks are the names
the persons released. Id.
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page District Court Opinion
The district court, holding that the requested names and identifying
information were exempt from disclosure under Exemption 7(C), determined that
[t]he released detainees have significant privacy interest (ER (bolding and
capitalization omitted), and that the marginal public interest does not warrant
invasion privacy. (same). The court first rejected Mr. Tuffly claim,
heavily based Union Leader Corp. U.S. Dep Homeland Sec., 749 F.3d (1st Cir. 2014), that the released persons ha[d] only attenuated privacy
interest the nondisclosure their names. Union Leader, the
district court described, newspaper [successfully] sought the names six
persons arrested ICE, which redacted the names from its disclosure records
which otherwise outlined the persons criminal histories and arrest records. Id.
The district court concluded that Union Leader reasoning (and Tuffly
reliance upon it) [was] difficult square with Supreme Court precedent two
ways. Id.
First, the district court noted that the Supreme Court, U.S. Dep Justice Reporters Comm. for Freedom the Press, 489 U.S. 749 (1989), long
ago reject[ed] [the] cramped notion personal privacy (ER (first alteration original)) that the First Circuit had applied holding that the public
availability criminal records significantly diminished any interest
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
compilation those records. Thus, the district court explained, the
circumstance that criminal records are public does not vitiate privacy interest full criminal history compiled the government.
Second, the district court continued, while the First Circuit had emphasized
the [requestor] newspaper avowal had intention contacting the six
individuals [whose names were requested] and Tuffly gives similar assurances,
the Supreme Court has repeatedly stated that whether invasion privacy
warranted cannot turn the purpose for which the request made.
(quoting Reporters Committee, 489 U.S. 771) (emphasis omitted)). Thus, the
district court summarized, the released persons privacy interests are not
attenuated either the fact that their criminal records are already public some
form, because Tuffly disavows any intent harass them. Id.
Noting the often hostile atmosphere surrounding unauthorized
immigration, the district court explained that must consider the risk that [the
released persons] will face harassment from any source, regardless Tuffly
intentions. Finally, quoting U.S. Dep State Ray, 501 U.S. 164, 176
(1991), the court noted the Supreme Court reasoning that [a]lthough disclosure personal information [of Haitians interdicted from entering the United
States and returned Haiti] constitutes only minimis invasion privacy
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
when [their] identities are unknown, the invasion privacy becomes
significant when the personal information linked particular interviewees.
Turning the public interest obtaining the redacted names, the district
court explained that clear Tuffly seeks determine whether ICE acted
diligently pursuing its stated policy that [p]riority for detention remains
serious criminal offenders and other individuals who pose significant threat
public safety. 8-9 (alteration original). The court responded that [t]he
information Tuffly has received includes each person criminal history (if any),
the extent ICE knowledge, which sufficient evaluate ICE decisionmaking. Id. The court acknowledged that [t]he names might shed some
additional light, but that marginal utility more than outweighed the privacy
interests stake. Id.
SUMMARY ARGUMENT
The district court properly held that the names the released detainees were
validly withheld under FOIA Exemption 7(C). The court first correctly
determined that those detainees have significant privacy interest (ER.
their names. The court further correctly determined that while [t]he [requested]
names might shed some additional light ICE decision-making, any such
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
marginal utility was more than outweighed the privacy interests stake.
Op. Mr. Tuffly concedes that the released detainees, whom incorrectly
deems all criminal aliens, have privacy interest their names. seeks trivialize stating that his goal seeking the names research, and that does not intend contact, harass, embarrass the aliens, [n]or intend
for others and when the information made public. Aplnts. Br.
(citation omitted). But requestor intention, matter how sincere, irrelevant Exemption 7(C) balancing process. decision requiring disclosure one
requestor effectively requires disclosure all. Mr. Tuffly cannot offer assurances behalf the public. Here, the concern with harassment, and perhaps even
violence, heightened given the well-known often hostile atmosphere
surrounding unauthorized immigration (ER 7), particularly Arizona. Mr. Tuffly has already obtained the disclosure any convictions
criminal proceedings involving the released detainees prior their release. Thus, already knows what ICE knew when acted. That knowledge fully equipped
him assess the exercise judgment ICE that relevant time. Consequently,
Mr. Tuffly has not demonstrated, must successful, that release the
undisclosed names would significantly advance, beyond what has already been
accomplished, the public interest learning about what ICE has done. The
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
asserted public interest obtaining the names remains best speculative and
attenuated. such, cannot outweigh the significant privacy interest stake.
STANDARD REVIEW
[A] two-step standard review applies summary judgment FOIA
cases. The court first determines under novo standard whether adequate
factual basis exists support the district court decisions. adequate factual
basis exists, then the district court conclusions fact are reviewed for clear
error, while legal rulings, including its decision that particular exemption applies,
are reviewed novo. Prudential Locations LLC U.S. Dep Hous.
Urban Dev., 739 F.3d 424, 429 (9th Cir. 2013) (brackets original) (quoting Lane Dep the Interior, 523 F.3d 1128, 1135 (9th Cir. 2008)).
ARGUMENT
THE DISTRICT COURT, SUSTAINING THE WITHHOLDING THE REQUESTED NAMES THE RELEASED DETAINEES,
PROPERLY BALANCED THEIR PRIVACY INTEREST AGAINST
THE PUBLIC INTEREST DISCLOSURE
The FOIA serves open agency action the light public scrutiny.
Department the Air Force Rose, 425 U.S. 352, 361 (1976). But the FOIA
simultaneously demands balancing that interest against other important
interests. Thus Congress made clear that agency may withhold records
information compiled for law enforcement purposes where release the
information could reasonably expected constitute unwarranted invasion
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page personal privacy. Exemption 7(C), U.S.C. 552(b)(7)(C). See also
Exemption U.S.C. 552(b)(6).1 Plaintiff does not argue that the records issue
here were not compiled for law enforcement purposes, and thus the only
question whether the release the names and identifying information the
detainees could reasonably expected constitute unwarranted invasion
personal privacy.
The FOIA two personal privacy [e]xemptions speak
unwarranted invasion personal privacy, not any invasion. So, determine
whether record properly withheld, [the Court] must balance the privacy interest
protected the exemptions against the public interest government openness
that would served disclosure. Lahr NTSB, 569 F.3d 964, 973 (9th Cir.
2009) (citing National Archives Records Admin. Favish, 541 U.S. 157, 171
(2004); U.S. Dep Def. FLRA, 510 U.S. 487, 494-95 (1994)). Exemption
requires clearly unwarranted invasion personal privacy, whereas Exemption less demanding, requiring only that release the requested information could
reasonably expected constitute unwarranted invasion personal privacy.
See Lahr, 569 F.3d 973-74 But the same standards for identification privacy
and public interests balanced apply both exemptions. Id. 974 Because
Exemption 6(C) bars disclosure personnel and medical files and similar files
the disclosure which would constitute clearly unwarranted invasion
personal privacy. U.S.C. 552(b)(6).
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
both exemptions require balancing public and private interests, cases arising
under Exemption also inform [the Court analysis. The District Court Properly Found That The Released Detainees
Have Significant Privacy Interest The Withholding Their
Names Standards For Identifying And Weighing Privacy Interest withhold information agency must show that some nontrivial
privacy interest stake. Prudential Locations LLC U.S. Dep Hous.
Urban Dev., 739 F.3d 424, 430 (9th Cir. 2013) (quoting U.S. Dep Def.
FLRA, 510 U.S. 501. See also Forest Serv. Emps. for Envtl Ethics U.S.
Forest Serv., 524 F.3d 1021, 1027 (9th Cir. 2008) [S]ome nontrivial privacy
interest sufficient justify the withholding information unless the
public interest disclosure sufficient outweigh it. (emphasis omitted).
The nontrivial privacy interests that Exemption 7(C) protects include
[e]mbarassing and humiliating facts particularly those connecting individual criminality. Detroit Free Press, Inc. U.S. Dep Justice, No. 14-1670, 2016 3769970, (July 14, 2016) (en banc) (citing Department Justice
Reporters Comm. for Freedom the Press, 489 U.S. 749, 771 (1989). Moreover,
that 7(C) privacy interest must understood light the consequences that
would follow from unlimited disclosure). Favish, 541 U.S. 170.
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
[T]he reasons why requestor] seeks [information] are irrelevant [the
Court inquiry. Forest Serv., 524 F.3d 1025 (denying request identities the Forest Service employees Thus, [w]hether invasion privacy
warranted cannot turn the purposes for which the request for information
made. Id. (quoting U.S. Dep Def., 510 U.S. 496 quoting turn Reporters
Committee, 489 U.S. 771). FOIA provides every member the public with
equal access public documents and, such, information released response
one FOIA request must released the public large. Id. Accordingly,
assessing the potential adverse impact that the requested disclosure could have
privacy interests, the Court consider[s] the consequences disclosure
the entire public, not just disclosure the requestor. Id. (emphasis added). Privacy Interest Here Significant
Mr. Tuffly acknowledges (Aplnts. Br. 5), Reporter Committee compels,
that protected privacy interests encompass the names persons with criminal
records. See Union Leader Corp. U.S. Dep Homeland Sec., 749 F.3d 45,
51-52 (1st Cir. 2014). The district court here correctly found the privacy interest
stake significant. This Court, like the district court, may
appropriately take judicial notice today often hostile atmosphere surrounding
unauthorized immigration, particularly southwestern border states such
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
Arizona. Op. That atmosphere enhances the risk that [the released persons]
will face harassment from any source, regardless Tuffly intentions. Id.
Mr. Tuffly efforts overcome the privacy interest unavailing. First,
Mr. Tuffly states that seeks the information, including the names the released
persons, only research, make available for others research, th[eir]
backgrounds determine all their past crimes, any crimes that they have
committed under supervision since being released, and whether they have now
been removed. Aplnts. Br. (emphasis added). further emphasizes, that
does not intend contact, harass, embarrass the aliens, [n]or intend for
others and when the information made public. Id. (citation omitted).
Mr. Tuffly principally relies, did before the district court, the
conclusion Union Leader that the aliens privacy rights were attenuated
Mr. Tuffly repeated references the detainees criminal aliens which
incorrectly lumps together individuals who have criminal record, have merely
been charged, have actual convictions does not undermine the privacy
interests here. FOIA protects individual personal privacy regardless
whether has been convicted crime, See Reporters Committee, 489 U.S.
771.
Already, Mr. Tuffly, through his counsel, has posted all the previously released
information counsel website, judicialwatch.org. See
http://www.judicialwatch.org/wp-content/uploads/2015/07/Tuffly-v-DHS-06247Records-r_2015-ICFO-06247.pdf (last visited August 26, 2016); Judicial Watch
Document Archive, Tuffly DHS 06247 Records List (created July 13, 2015)
http://www. judicialwatch.org/document-archive/tuffly-v-dhs-06247-recordslist/
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page the fact[s] that the underlying arrests and convictions were matters public
record, and that the newspaper proposed investigation was limited. Aplnts.
Br. 8.4 also points out that Union Leader added that the privacy rights
were further diminished the fact that the [newspaper] did not intend contact
the aliens. Id.
But, the district court opinion makes clear (ER. 7), under Reporters
Committee, the public nature criminal records irrelevant the existence
privacy interests vis-a-vis the government disclosure any compilations that
include accounts such records. Further, explained above (supra p.10), under
Reporters Committee requestor intention, matter how sincere, confine the
use information research irrelevant the balancing process. decision
requiring disclosure one requestor effectively one that requires disclosure
all. Forest Serv., 524 F.3d 1025.
And because disclosure one under FOIA requires disclosure all, Mr.
Tuffly stated intent not harass any the released detainees irrelevant.
Certainly, explicit intent contact the specific individuals magnifies the
importance protecting their identities. See U.S. Department State Ray, 502
U.S. 164, 177 (1991); Forest Serv., 524 F.3d 1026. But stated intent not note that the request Union Leader was confined only convicted criminal
aliens, whereas Mr. Tuffly seeks the names all aliens who were released during specified time period, without regard their having criminal record.
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
contact the individuals does nothing diminish their privacy interests. See
Reporters Comm., 489 U.S. 771; Forest Serv., 524 F.3d 1025.
Anyone may file FOIA request. See Reporters Comm., 489 U.S. 771-72
(intent that the FOIA give any member the public much right
disclosure one with special interest [in particular document] (quotation
marks omitted). Thus, [i]t must remembered that once there disclosure, the
information belongs the general public. There mechanism under FOIA for protective order allowing only the requester see whether the information bears
out his theory, for proscribing its general dissemination. Favish, 541 U.S.
174. Because the release the information Mr. Tuffly would constitute
public release the information, the question whether the disclosure would
amount unwarranted invasion privacy cannot whether would contact
the released detainees.
Thus, National Association Retired Federal Employees (NARFE)
Horner, 879 F.2d 873 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990), the
D.C. Circuit, rejecting union attempt obtain the names and addresses
retired federal employees, explained that [b]efore Reporters Committee,
NARFE primary argument was that its planned use their names and addresses
would not occasion significant annoyance the annuitants. 879 F.2d 875. The
Court responded that Reporters Committee makes clear that this not the
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
relevant consideration, since the identity the requesting party has bearing the merits his her FOIA request. NARFE, 879 F.2d 875 (quoting
Reporters Committee, 489 U.S. 771). sum, the Court stated, [b]ecause
court cannot limit the disclosure records particular parties for particular
uses, would illogical well unfair the person whose privacy stake
for the court balance the public interest disclosure the whole world against
the private interest avoiding disclosure only the party making the request, and ignore the impact personal privacy the more general disclosure that will
likely ensue. Id. The District Court Properly Found That The Interest Disclosure The Detainees Names Was Only Marginal Standards For Identifying And Weighing Public Interest
Once the government has identified cognizable privacy interest, the only
relevant public interest the FOIA balancing analysis the extent which
disclosure the information sought would shed light agency performance its statutory duties otherwise let citizens know what their government
to. Lahr, 569 F.3d 974 (quoting Bibles Oregon Nat. Desert Ass 519 U.S.
355, 355-56 (1997) (per curiam). Where there cognizable privacy interest,
requestor must show that the public interest sought advanced
significant one and that the information [sought] likely advance that
interest. Lane Department the Interior, 523 F.3d 1128, 1137 (9th Cir. 2008)
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
(emphasis added; alteration original) (quoting Favish, 541 U.S. 172. See
Forest Serv., 524 F.3d 1025 (requested disclosure must contribut[e] significantly public understanding the operations activities government (emphasis
added; brackets original) (quoting Reporters Comm., 489 U.S. 775. determining significance, only the incremental public interest
value, any, the withheld information that must balanced against the
adversely affected privacy interests. Thus, Lahr, this Court explained that
because only the names witnesses and agents are missing from the released
documents, under the applicable precedents the marginal additional usefulness
the names exposing government misconduct must outweigh the privacy interests stake. Lahr, 569 F.3d 978 (quoting Painting Indus. Hawaii Market
Recovery Fund U.S. Dep the Air Force, F.3d 1479, 1486 (9th Cir.
1994)). See American Immigration Lawyers Ass Executive Office For
Immigration Review, No. 15-5201, slip. op. (D.C. Cir. July 29, 2016) [T]he
question whether, given the information already disclosed the incremental
value served disclosing immigration judge name outweighs that person
privacy interest. (quoting Schrecker Dep Justice, 349 F.3d 657, 661 (D.C.
Cir. 2003)).
Moreover, Mr. Tuffly acknowledges (Aplnts. Br. 7), cases where the
interest disclosure derives from government employee negligence
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
misconduct, [the requestor] must provide more than bare suspicion agency
misconduct; rather, she must produce evidence that would warrant belief
reasonable person that the alleged Government impropriety might have occurred.
Lane, 523 F.3d 1138 (quoting Favish, 541 U.S. 174). Public Interest Here Marginal Best, That AlreadyReleased Information Fully Allows Assessment
ICE Decision-Making
The district court here found that [t]he [requested] names might shed some
additional light regard Mr. Tuffly efforts evaluate ICE decisionmaking. ER. Any marginal utility that might exist, the court correctly held,
was more than outweighed the privacy interests stake. Id. Mr. Tuffly
conclusory attempt maximize the public interest that claims the requested
additional disclosure would advance more persuasive than his effort
trivialize the privacy interests stake. offers nothing demonstrate the likely
contribution the names seeks his understanding what ICE did.
Mr. Tuffly broadly states that the requested names and records are
necessary provide insight the activities government. Aplnts. Br.
(emphasis added). asserts that ICE statement that [p]riority for detention
remains serious criminal offenders and other individuals who pose significant
threat public safety [i]mplicit[ly] assert[s] that those released into less
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
costly methods supervision not pose significant threat public safety.
Aplnts. Br. 10. (first alteration original). points out, citing newspaper
story, that already public knowledge that several the [persons] released
ICE had been charged [(at some time prior their release)] with number
violent crimes including assault, battery, domestic violence, and weapons charges.
Id. 11.
But Mr. Tuffly already knows what ICE knew when released the persons question, and thus may assess ICE judgment doing so. has already
obtained records that fully informed him any convictions criminal
proceedings involving the detainees the time their release. That disclosure
has well equipped him understand and assess what ICE was doing its release detainees prompted budgetary considerations, i.e., satisfy his concern whether the agency was releasing apparently dangerous persons into the
community.5
Given that release information concerning any criminal involvement
the detainees prior their release, Mr. Tuffly task now strictly pertains the
undisclosed names show that their disclosure will significantly advance,
beyond what has already been accomplished, the public interest learning about
Notably, number the released persons have already been removed
voluntarily departed the United States following their release. Even Mr. Tuffly
public interest rationale were accepted, would have virtually application such persons.
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
what ICE has done. The asserted interest the names speculative and
attenuated. support his claim, Mr. Tuffly once more invokes Union Leader. See
supra. p.12. But there, the newspaper-requestor was attempting investigate the
circumstances ICE alleged unduly long delays apprehending for the
purpose removal those aliens who had been convicted crimes. See Union
Leader, 749 F.3d 55-56. That decision sanctioned proposed derivative use
disclosed material (use disclosed names obtain information from state and
local governments). not clear, however, that any public interest that cognizable under
FOIA even involved cases where that alleged interest predicated the socalled derivative use the information that being sought where the
requestor claim public interest based the hope that [he] may able use that information obtain additional information outside the Government
files. Ray, 502 U.S. 178. See Lahr, 569 F.3d 978 (Court has viewed
skeptically the assertion that the public interest materially advanced
disclosing names individuals redacted from documents already the public
record But least the focus Union Leader was the newspaper desire
learn more, even circuitously, about what ICE was doing not doing fulfilling
its responsibility apprehend and deport criminal aliens who posed danger
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
the community. The newspaper expected that with the requested names, culd
examine state and local agency files ascertain the interaction such agencies
with ICE the status those aliens.
Here, Union Leader, Mr. Tuffly claims that his obtaining the requested
names will better enable him obtain derivative information from third parties.
But, unlike that case, there reasonable prospect that the derivative
information will disclose anything more about the already-disclosed functioning
ICE the named persons. Rather, would but only perhaps enable Mr. Tuffly more easily research the practical effects ICE action.
CONCLUSION
For the foregoing reasons, the order the district court should affirmed.
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant
Attorney General
JOHN LEONARDO
United States Attorney
MATTHEW COLLETTE
(202) 514-4214
ROBERT KAMENSHINE
(202) 514-2494
Attorneys, Appellate Staff
Civil Division, Room 7213
Department Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-000
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
CERTIFICATE COMPLIANCE hereby certify that this brief complies with the type volume limitations set
forth Federal Rule Appellate Procedure 32(a)(7)(B). This brief contains
4,444 words.
s/Robert Kamenshine
ROBERT KAMENSHINE
Attorney for Defendant-Appellant
Appellate Staff, Civil Division
Room 7213
U.S. Department Justice
950 Pennsylvania Ave., N.W.
Washington D.C. 20530-0001
202-514-2404
robert.kamenshine@usdoj.gov
STATEMENT RELATED CASES hereby state that aware related cases.
s/Robert Kamenshine
ROBERT KAMENSHINE
Attorney for Defendant-Appellant
Appellate Staff, Civil Division
Room 7213
U.S. Department Justice
950 Pennsylvania Ave., N.W.
Washington D.C. 20530-0001
202-514-2404
robert.kamenshine@usdoj.gov
Case: 16-15342, 08/29/2016, ID: 10104730, DktEntry: 17, Page
CERTIFICATE SERVICE hereby certify that this 29th day August, 2016, caused served all interested parties, via this Court ECF system, copy Appellee brief
s/Robert Kamenshine
ROBERT KAMENSHINE
Attorney for Defendant-Appellant
Appellate Staff, Civil Division
Room 7213
U.S. Department Justice
950 Pennsylvania Ave., N.W.
Washington D.C. 20530-0001
202-514-2404
robert.kamenshine@usdoj.gov