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Judicial Watch • Tuffly v DHS JW opening brief 15342

Tuffly v DHS JW opening brief 15342

Tuffly v DHS JW opening brief 15342

Page 1: Tuffly v DHS JW opening brief 15342

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Date Created:July 5, 2016

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Tags:Opening, Leader, REPORTERS, 15342, Tuffly 15342, Appellant, Tuffly, released, aliens, peterson, names, Criminal, privacy, table, Exemption, statement, Freedom, Circuit, Union, DHS, Supreme Court, FOIA, James, district, ICE


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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
U.S. DISTRICT COURT FOR ARIZONA
__________
OPENING BRIEF APPELLANT
EDWARD BUD TUFFLY
__________
Michael Bekesha
James Peterson
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
TABLE CONTENTS
TABLE CONTENTS ............................................................................................i
TABLE AUTHORITIES ...................................................................................
JURISDICTIONAL STATEMENT ..........................................................................
STATEMENT THE ISSUE .................................................................................1
PERTINENT STATUTORY PROVISIONS ............................................................
STATEMENT THE CASE ..................................................................................
Nature the Case .................................................................................
II.
The Course Proceedings ...................................................................
III.
The District Court Ruling ...................................................................
STATEMENT FACTS ........................................................................................3
SUMMARY THE ARGUMENT ........................................................................
STANDARD REVIEW .......................................................................................6
ARGUMENT .............................................................................................................6
CONCLUSION ........................................................................................................11
STATEMENT RELATED CASES ...................................................................13
CERTIFICATE COMPLIANCE
CERTIFICATE SERVICE
TABLE AUTHORITIES
Case
Lahr National Transportation Safety Board,
569 F.3d 964 (9th Cir. 2009) ...........................................................................
Lane Dep the Interior,
523 F.3d 1128 (9th Cir. 2009) .........................................................................
Milner U.S. Dep the Navy,
575 F.3d 959 (9th Cir. 2009) ...........................................................................
Nat Archives and Records Admin. Favish,
541 U.S. 157 (2004)...............................................................................7,
Union Leader Corp. U.S. Dep Homeland Sec.,
749 F.3d (1st Cir. 2014)....................................................................8,
U.S. Dep Justice Reporters Comm. for Freedom the Press,
489 U.S. 749 (1989)...........................................................................6,
Watkins U.S. Bureau Customs and Border Prot.,
643 F.3d 1189 (9th Cir. 2011) .....................................................................6,
Constitutional Provisions, Rules, and Statutes U.S.C. 552 ............................................................................................................2 U.S.C. 552(a)(4)(B) .............................................................................................1 U.S.C. 552(b)(6)...................................................................................................1 U.S.C. 552(b)(7)(C) .....................................................................................1, U.S.C. 552a ..........................................................................................................2 U.S.C. 1291 ........................................................................................................1 U.S.C. 1331 ........................................................................................................1
FED. CIV. .......................................................................................................2
iii
JURISDICTIONAL STATEMENT
Jurisdiction the U.S. District Court for the District Arizona District
Court was pursuant the Freedom Information Act, U.S.C. 552(a)(4)(B),
and U.S.C. 1331. The District Court entered final judgment March 2016 Order which dismissed all claims. timely Notice Appeal was filed
March 2016. Appellate jurisdiction exists pursuant U.S.C. 1291.
STATEMENT THE ISSUE
Whether the names criminal alien detainees released from federal
facilities Arizona due fiscal uncertainty are being properly withheld under
the personal privacy exemptions the Freedom Information Act.
PERTINENT STATUTORY PROVISIONS
The relevant personal privacy exemptions under the statute provide:
This section does not apply matters that are
(6) personnel and medical files and similar files the disclosure
which would constitute clearly unwarranted invasion personal
privacy;
(7) records information compiled for law enforcement purposes,
but only the extent that the production such law enforcement
records information (C) could reasonably expected
constitute unwarranted invasion personal privacy[.] U.S.C. 552(b).
STATEMENT THE CASE
Nature the Case.
Mr. Edward Bud Tuffly brought suit compel compliance with the
Freedom Information Act, U.S.C. 552 FOIA and the Privacy Act,
U.S.C. 552a Privacy Act Mr. Tuffly sought information concerning the
release criminal alien detainees from federal facilities Arizona due fiscal
uncertainty. After Mr. Tuffly filed his lawsuit, the U.S. Department Homeland
Security DHS released records responsive Mr. Tuffly FOIA request, albeit
with redactions. Specifically, DHS redacted the names the criminal aliens,
claiming that the aliens names are exempt from disclosure pursuant FOIA
personal privacy exemptions.
II.
The Course Proceedings.
Following the release the records responsive Mr. Tuffly FOIA
request, DHS moved for summary judgment under Rule the Federal Rules
Civil Procedure.
III.
The District Court Ruling. March 2016, the District Court granted DHS motion for summary
judgment and dismissed the complaint, finding that the names criminal aliens
were properly redacted pursuant FOIA personal privacy exemptions.
STATEMENT FACTS about February 26, 2013, Immigration and Customs Enforcement ICE component DHS, issued the following statement: fiscal uncertainty remains over the continuing resolution and possible
sequestration, ICE has reviewed its detained population ensure detention
levels stay within ICE current budget. Over the past week, ICE reviewed
several hundred cases and placed these individuals methods
supervision less costly than detention. All these individuals remain
removal proceedings. Priority for detention remains serious criminal
offenders and other individuals who pose significant threat public
safety.
Exhibit Declaration Edward Bud Tuffly Tuffly Decl. (Excerpts Record Appellant Edward Bud Tuffly (hereafter ___ )).
Subsequently, the USA Today reported that contrary ICE claims, least some the detainees released because fiscal uncertainty had committed serious
crimes faced serious criminal charges, including kidnapping, sexual assault,
drug trafficking, and homicide. See Exh. Tuffly Decl. (ER 16-17). The USA
Today based its reporting, part, records received response separate
FOIA request. Id.
Following this report the USA Today, Mr. Tuffly sought information
about all detainees released from detention facilities Arizona due fiscal
uncertainty. See Tuffly Decl. (ER 11). Specifically, requested records
sufficient identify (1) the date each detainee was released; (2) the facility from
which each detainee was released; (3) each detainee criminal history and criminal
charges the time release; (4) methods supervision which each detainee
was subjected; and (5) whether each detainee appeared for subsequent removal
other proceedings and/or was removed from the United States. Id. Mr. Tuffly
stated that access this information would allow the public assess the accuracy ICE implied assertions about the lack risk posed the aliens release. Id. also would clarify whether the aliens being supervised methods less costly
than detention have committed were charged with committing any additional
crimes subsequent their release. Id.
Importantly, Mr. Tuffly sought this information only research, make
available for others research, the backgrounds the criminal aliens determine
all their past crimes, any crimes that they have committed under supervision
since being released, and whether they have now been removed. Id. (ER 12).
Mr. Tuffly does not intend contact, harass, embarrass the aliens. Id. Nor
does intend for others and when the information made public. Id.
DHS eventually released the records responsive Mr. Tuffly FOIA
request, though with the names the criminal aliens redacted. Nonetheless, Mr.
Tuffly analyzed the records and found that the facts concerning the criminal aliens
were closer those reported the USA Today than those asserted ICE. See
Order (ER 6). The responsive records indicated that, total, the 149 criminal
aliens were charged with nearly 260 crimes, including violent crimes such
assault, domestic violence, weapons offenses, and battery. Id. (ER 9). Mr.
Tuffly shared this information with the public, which resulted news media
coverage.
SUMMARY THE ARGUMENT
DHS improperly withholding the names criminal aliens released into
less costly forms supervision due fiscal uncertainty under FOIA
personal privacy exemptions. The exemptions are not absolute. They require
balancing the privacy interests stake with the public interest disclosure. this case, the criminal aliens have attenuated privacy interest due the fact
that their prior convictions are already matter public record. Further, the
release the names will allow the public monitor DHS conduct supervising
potentially dangerous criminal aliens, who are subject removal but have been
released prior that removal. The public strong interest disclosure therefore
outweighs the minimal privacy interests the criminal aliens. The U.S. Court
Appeals for the First Circuit already has considered case with similar facts and
concluded the same. Accordingly, this case should remanded the District
Court that DHS can compelled promptly produce the names the
criminal aliens Mr. Tuffly.
STANDARD REVIEW
This Court employs two-step standard review FOIA cases. Watkins U.S. Bureau Customs and Border Prot., 643 F.3d 1189, 1194 (9th Cir. 2011).
First, this Court reviews novo whether adequate factual basis exists
support the district court decisions. Id. (quoting Milner U.S. Dep the
Navy, 575 F.3d 959, 963 (9th Cir. 2009)). Second, legal rulings, including [the
district court decision that particular exemption applies, are reviewed
novo. Id. (quoting Lane Dep Interior, 523 F.3d 1128, 1135 (9th Cir.
2008)). The burden rests the government justify its decision exclude
disclosures under FOIA. Id. (citing U.S. Dep Justice Reporters Comm. for
Freedom the Press, 489 U.S. 749, 755 (1989)).
ARGUMENT
DHS improperly withholding the names 149 criminal aliens under
Exemptions and 7(C) the Freedom Information Act. Both exemptions
require the balancing public and private interests, though the analysis under the
two provisions not identical. Lahr National Transp. Safety Bd., 569 F.3d 964,
973-74 (9th Cir. 2009). Exemption 7(C) broader than Exemption Id. Thus
withholding the criminal aliens names under Exemption 7(C) improper,
also improper under Exemption Id. Under Exemption 7(C), agency may
withhold information compiled for law enforcement purposes the production
such information could reasonably expected constitute unwarranted
invasion personal privacy. U.S.C. 552(b)(7)(C).1
There dispute that the information issue this case was compiled
for law enforcement purposes. The only issue then, whether the production
the names the 149 criminal aliens could reasonably expected constitute
unwarranted invasion personal privacy. The burden DHS prove such.
Watkins 1194 (citing Reporters Comm., 489 U.S. 755). determining whether record should released under FOIA personal
privacy exemptions, courts require the requester first show that the public
interest sought advanced significant one, interest more specific than
having the information for its own sake. National Archives and Records Admin. Favish, 541 U.S. 157, 172 (2004). Second, the requester must demonstrate that
the information likely advance that interest. Id. Particular this case,
Where there privacy interest protected [the
personal privacy exemptions] and the public interest
being asserted show that responsible officials acted
negligently otherwise improperly the performance their duties, the requester must establish more than
bare suspicion order obtain disclosure. Rather, the
requester must produce evidence that would warrant
belief reasonable person that the alleged government
impropriety might have occurred.
Id. 174.
For ease reference, Mr. Tuffly refers the two exemptions the
personal privacy exemptions. Union Leader Corporation U.S. Department Homeland Security, the
First Circuit considered case with similar facts the current one. 749 F.3d
(1st Cir. 2014). There, ICE arrested six criminal aliens New Hampshire part the nationwide Cross Check operation. Id. 48. After ICE refused release
the names the six criminal aliens response media questioning, the Union
Leader, New Hampshire newspaper, submitted FOIA request seeking
production any and all records and documents relating and/or concerning the
six individuals arrested ICE during the Cross Check operation. Id. ICE
provided I-213 forms containing criminal histories and arrest records the six
criminal aliens, but redacted the aliens names and addresses. Id. 48-49. The
newspaper sued seeking the names and addresses the aliens and arguing that
ICE improperly applied Exemptions and 7(C). Id. 49. The district court
granted ICE motion for summary judgment. Id. appeal, however, the First Circuit reversed, holding that the aliens
privacy rights were attenuated both the fact that the underlying arrests and
convictions were matters public record, and that the newspaper proposed
investigation was limited. Id. 53. The First Circuit added that the criminal
aliens privacy rights were further diminished the fact that the Union Leader did
not intend contact the aliens. Id. Moreover, there was substantial public
interest disclosure because the Union Leader provided evidence that would
warrant belief reasonable person that ICE was negligent handling its
removal duties. Id. 56. particular, the newspaper provided I-213 form
already produced showing that least one the aliens was ordered removed from
the United States whole years prior the alien 2011 arrest. Id.
The current case highly analogous Union Leader. The criminal aliens this case were DHS custody during the course pending removal
proceedings. Due fiscal uncertainty, DHS elected release these known
criminal aliens back into the public under methods supervision less costly than
detention. See Exh. Tuffly Decl. (ER 14). DHS actions thus create
substantial public interest knowing whether criminal aliens, released from
detention and into the general population, threaten public safety continuing
engage criminal activity even under government supervision.
Further, unlike the names offenders issue Reporters Committee, the
names the 149 released criminal aliens this case are necessary for the public know what their government to. Reporters Comm, 489 U.S. 773.
From 2010 through 2015, 124 criminal aliens released DHS have been
responsible for 135 homicide-related crimes. Two these criminal aliens had
previous homicide convictions. Before having committed these homicides, these
124 criminal aliens had amassed 464 criminal charges. Additionally, ICE released total 156 repeat offenders, which were ICE own discretion.
Stephan Dinan, 124 Illegal Immigrants Released DHS Later Charged With
Murder, Report Finds, Washington Times (Mar. 14, 2016)
http://www.washingtontimes.com/news/2016/mar/14/124-illegal-immigrantsreleased-by-dhs-later-charg/.
Key the Supreme Court holding Reporters Committee was the fact that
response [the] request would not shed any light the conduct any
Government agency official. Id. this case, the names and records the
criminal aliens are necessary provide insight the activities government.
further distinction from Reporters Committee that the information sought this
case desired only for the purpose assessing government actor this case
DHS conduct its response fiscal uncertainty. The particular facts about
the private individuals are little consequence and but are the necessary tools
enable proper assessment.
Following their release, the 149 criminal aliens were still subject removal
proceedings and were allegedly under government supervision less costly than
detention. See Exh. Tuffly Decl. (ER 14). Implicit ICE statement
that [p]riority for detention remains serious criminal offenders and other
individuals who pose significant threat public safety assertion that those
released into less costly methods supervision not pose significant threat public safety. Id. withholding the names the criminal aliens, DHS prevents the public
from assessing both whether DHS made reasonable assessment the risks posed the public releasing criminal aliens under less strict supervision, and whether
DHS continued supervision has adequately safeguarded the public from
dangerous individuals who would otherwise have been subject detention.
result the USA Today FOIA requests, already public knowledge that
several the criminal aliens released ICE due fiscal uncertainty had been
charged with number violent crimes including assault, battery, domestic
violence, and weapons charges. See Exh. Tuffly Decl. (ER 16-17). Yet,
without the names those criminal aliens, impossible for Mr. Tuffly any
other member the public determine subsequent events shed further light
the DHS actions. Specifically, imperative know whether the released
criminal aliens appeared any subsequent removal hearings, committed additional
crimes while under government supervision, have been removed from the
country. The above information constitutes evidence that would warrant belief reasonable person that the alleged government impropriety might have
occurred. Favish, 541 U.S. 174.
CONCLUSION
For the foregoing reasons, Mr. Tuffly respectfully requests that the Court
reverse the District Court order granting the motion for summary judgment and
remand this matter for further proceedings.
Dated: July 2016
Respectfully submitted,
/s/ James Peterson
Michael Bekesha
James Peterson
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
STATEMENT RELATED CASES
Under Circuit Rule 28-2.6, Appellant states that there are known cases
pending this Court that are related this action defined under that Rule.
CERTIFICATE COMPLIANCE
This brief complies with the type-volume limitation FED. APP. 32(a)(7)(B) because contains 3,024 words, excluding the parts the brief
exempted FED. APP. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements FED. APP.
32(a)(5) and the type style requirements FED. APP. 32(a)(6) because this
brief has been prepared proportionally spaced typeface using Microsoft Word
2010, namely, point Times New Roman.
/s/ James Peterson
CERTIFICATE SERVICE hereby certify that electronically filed the foregoing OPENING BRIEF APPELLANT EDWARD BUD TUFFLY with the Clerk the Court for
the United States Court Appeals for the Ninth Circuit using the appellate
CM/ECF system July 2016. certify that all participants the case are registered CM/ECF users and
that service will accomplished the appellate CM/ECF system.
/s/ James Peterson