UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMARA EMUWA, et al.,

Plaintiffs,

v. Case No. 1:20-cv-01756 (TNM)

U.S. DEPARTMENT OF HOMELAND SECURITY,

Defendant.

MEMORANDUM OPINION

Plaintiffs—four individuals and one organization—seek asylum documents called

Assessments to Refer from the Department of Homeland Security (DHS). Those documents

contain an asylum officer’s impressions after an asylum interview and his recommendation on

whether asylum should be granted. DHS produced the factual portions but withheld the

analytical portions under the deliberative process privilege. In a prior opinion, the Court

confirmed the applicability of that privilege to the withheld information and granted summary

judgment to the agency. See Emuwa v. DHS, No. 20-cv-1756 (TNM),

, at *9

(D.D.C. June 3, 2021). The Court also explained that DHS had shown “why disclosure of the

redacted information in the Assessments would cause harm.” Id. at *8.

Plaintiffs appealed. At the parties’ request, the D.C. Circuit remanded the case for further

consideration in light of its opinion in Reporters Committee for Freedom of the Press v. FBI,

(D.C. Cir. 2021). After supplemental briefing from the parties, the Court finds that Reporters Committee does not mandate a different result. The Court thus will again grant

summary judgment to DHS. 1 See Order, ECF No. 24.

The Court incorporates by reference the factual recitation and analysis in its prior

opinion. This remand is limited to foreseeable harm. The Court accordingly will not reconsider

its previous holding that the agency properly invoked the deliberative process privilege.

Some background on foreseeable harm is in order. Under a 2016 amendment to FOIA,

an agency may not withhold otherwise exempt information unless “the agency reasonably

foresees that disclosure would harm an interest protected by” a FOIA exemption.

(a)(8)(A)(i)(I).

Two recent cases from the D.C. Circuit and one from this Court elucidate the standard for

the foreseeable harm requirement. In Machado Amadis v. Department of State,

(D.C. Cir. 2020), the agency withheld under the deliberative process privilege some

recommendations, discussion, and search notes about FOIA processing. After finding the

agency properly invoked the privilege, see id. at 370, the court also held that it had met the

foreseeable harm requirement, see id. at 371. The agency’s declaration said that disclosure

would discourage candid discussions among line attorneys, thereby hindering “the forthright

internal discussions necessary for efficient and proper adjudication of administrative appeals.”

Id. (quoting agency declaration). The Circuit denied that the agency had provided only

“generalized assertions that ‘could’ chill deliberations.” Id. (quoting plaintiff’s brief). The

agency instead had “specifically focused on the information at issue” in the forms and had

1 The D.C. Circuit did not explicitly vacate the Court’s Order granting summary judgment, arguably leaving that judgment intact. See Per Curiam Order, No. 21-5131, Emuwa v. DHS (D.C. Cir., Nov. 12, 2021). But the Court treats the Circuit’s mandate as an implied vacatur because if Reporters Committee did change the outcome, the Court would issue a new Order. And the Court could give that new Order only if the Circuit meant to vacate the previous one.

2 “concluded that disclosure of that information ‘would’ chill future discussions.” Id. (quoting

agency declaration). Thus, the agency permissibly withheld the privileged information.

The D.C. Circuit returned to the foreseeable harm requirement in Reporters Committee

for Freedom of the Press v. FBI,

(D.C. Cir. 2021). There, the plaintiff submitted

multiple FOIA requests for records about FBI agents impersonating reporters. See

.

The FBI withheld a bevy of information under the deliberative process privilege, including

emails between Director Comey and agency officials about a public editorial written by Comey

about the incident. See

at 360–61. The Committee challenged those withholdings.

The court held that the agency had not met the foreseeable harm requirement. The

agency’s declaration had said that disclosure “would have an inhibiting effect upon agency

decisionmaking” because it “would chill full and frank discussions” inside the agency.

. Decisionmakers would be “less candid and more circumspect in expressing their thoughts.”

The court rejected this explanation as an insufficient “perfunctory statement.”

.

The agency had merely “mouth[ed] the generic rationale for the deliberative process privilege

itself” rather than provide a “focused and concrete” explanation for why disclosure would, “in

the specific context of the agency action at issue, actually impede those same agency

deliberations going forward.”

. The agency’s failure to show a foreseeable harm

required disclosure of draft reports, even though the deliberative process privilege covered those

reports. See

.

After Machado Amadis and Reporters Committee, agencies must make two showings.

First, the agency must, as always, show that a FOIA exemption applies to withheld information.

See Jud. Watch, Inc. v. Dep’t of Treasury,

(D.D.C. 2011). Second, the

agency must articulate, in a “focused and concrete” way, the harm that would result from

3 disclosure, including the basis and likelihood of that harm. Reporters Comm.,

.

Failure to make both showings warrants disclosure. See Ctr. for Investigative Reporting v. CBP,

, 105–06 (D.D.C. 2019) (“In sum, FOIA now requires that an agency release a

record—even if it falls within a FOIA exemption—if releasing the record would not reasonably

harm an exemption-protected interest and if its disclosure is not prohibited by law.”) (cleaned

up).

This Court applied those principles in Reporters Committee for Freedom of the Press v.

U.S. Customs and Border Protection, — F. Supp. 3d —, No. 18-cv-155 (TNM),

(D.D.C. Oct. 18, 2021). There, CBP withheld information related to a summons issued

to the owner of a Twitter account critical of the agency. See id. at *1. On foreseeable harm, the

agency asserted that disclosure “would hamper [its] day-to-day operations because employees

would not feel comfortable” divulging their views. Id. at *7. For other information, the agency

said that officials might “not share their views,” id. at *8, or “voice their ideas or concerns

freely,” id. at *10, if the documents were disclosed. The agency also said that employees “must

feel candid” when seeking input from colleagues, id. at *9, and that disclosure “would have a

chilling effect on communication” between those employees,” id. at *16.

The Court rejected these assertions as insufficient statements of foreseeable harm. The

agency was concerned “only with a lack of candor” and the effect on agency decisions. Id. at *9.

Nowhere did it link those risks of disclosure to the specific information being withheld. And

general statements about candor, without more, merely restated “the generic rationales for the

privilege itself.” Id. at *16 (cleaned up). Because of the agency’s “lackluster” showing of

foreseeable harm, the Court ordered disclosure of all information withheld under the deliberative

process privilege. Id. at *17.

4 * * *

Here, DHS has submitted a supplemental declaration explaining the foreseeable harm

from disclosure of the Assessments. See Supp. Decl. of Cynthia Munita, ECF No. 30-1 (Munita

Decl.). To properly adjudicate asylum applications, asylum officers must feel free “to provide

candid assessments of the evidence and eligibility criteria to their supervising officials.” Id. ¶ 11.

Asylum officers therefore expect that “only [ ] those within USCIS” will view the analysis

portions of the Assessments. Id.

Disclosing that analysis would impact USCIS’s “ability to make sound judgments on

asylum applications.” Id. ¶ 14. “[W]ith the knowledge that their views and characterizations

would be made public,” asylum officers would “temper their discussions.” Id. That restraint

“would seriously impair USCIS’s mission in adjudicating those petitions.” Id. Asylum officers

should focus on “the substance of the information they are providing,” not whether their

impressions “may at some point be made publicly available.” Id.

More, bad actors could leverage the internal deliberations of asylum officers “to tailor

asylum applications and testimony in a favorable, but fraudulent, manner.” Id. ¶ 15. For

example, how asylum officers evaluate an applicant’s credibility or determine certain pertinent

facts would allow bad actors to “better fabricate evidence or testimony.” Id. And since asylum

officers would know that their own impressions could be disclosed and used that way, they

would be “less forthcoming in their assessments and recommendations.” Id. That would “stifle

the free flow of information between asylum officers.” Id.

Given this detailed explanation, the Court easily rejects Plaintiffs’ argument that the

declaration is “boilerplate.” See Pls.’ Supp. Br. at 19, ECF No. 31 (Pls.’ Br.). 2 Unlike the

2 All page citations refer to the pagination generated by the Court’s CM/ECF filing system.

5 unmoored agency assertions in this Court’s Reporters Committee case, DHS “specifically

focused on the information at issue” in the Assessments and explained how disclosure of that

information “would chill future internal discussions.” Machado Amadis, 971 F.3d at 371

(cleaned up). Specifically, asylum officers would “temper their discussions” of a particular

applicant and would focus less on “the substance of the information” in the asylum file. Munita

Decl. ¶ 14. And the agency discussed how disclosure would impede agency deliberations in a

“specific context,” Reps. Comm., 3 F.4th at 370—namely, “the full and proper analysis and fair

consideration of [ ] asylum requests on the merits.” Munita Decl. ¶ 14. That specificity mirrors

the adequate declaration in Machado Amadis, where the agency discussed how disclosure would

hinder “proper adjudication of administrative appeals.” 971 F.3d at 371 (cleaned up).

These robust explanations from DHS carry the agency’s burden under the foreseeable

harm requirement.

Plaintiffs respond that DHS has released Assessments in recent (and not so recent) cases.

See Pls.’ Br. at 20, 26, 33. The Court rejected this same argument in its prior opinion. See

Emuwa,

, at *9. An agency does not forfeit or waive a FOIA exemption “as to

an entire class of documents by voluntarily releasing one document of that type.” Bayala v.

DHS,

(D.D.C. 2017); see Abtew v. DHS,

(D.C. Cir.

2015) (“[A]n agency does not forfeit a FOIA exemption simply by releasing similar documents

in other contexts.”). So too an agency does not forfeit its ability to assert foreseeable harm as to

documents in that same class. See Emuwa,

, at *9.

Likewise, DHS’s release of “other similar documents,” does not undermine its assertion

of harm as to Assessments. Pls.’ Br. at 31. As the Court noted, those documents “relate to

6 different asylum procedures” and thus do not affect whether disclosing Assessments will lead to

foreseeable harm. Emuwa,

, at *9.

Plaintiffs also dismiss DHS’s emphasis on potential fraud as an inappropriate assertion of

foreseeable harm. They cite the statutory text of the requirement itself, which requires DHS to

foresee that disclosure “would harm an interest protected by” a FOIA exemption.

(a)(8)(A)(i)(I). According to Plaintiffs, the harm envisioned in Exemption 5—under which

DHS asserts the deliberative process privilege—is a lack of candor within agencies, not fraud by

bad actors. See Pls.’ Br. at 22–23.

The Court disagrees. For one thing, DHS’s discussion of the need for candid evaluations,

see Munita Decl. ¶ 14, is enough to carry the agency’s burden without any reference to fraud.

More, DHS has expressly tied its fraud concerns to candor inside the agency. As DHS explains,

asylum officers will “be less forthcoming in their assessments and recommendations” if they

know that bad actors could use those recommendations. Munita Decl. ¶ 15. That type of harm—

the “chilling of candid advice”—is “exactly what the privilege seeks to prevent” under

Exemption 5. Machado Amadis, 971 F.3d at 371. True, DHS mentions fraud, but only because

the possibility of fraud would dissuade full and fair deliberation. That is a proper assertion of

foreseeable harm under Exemption 5. See Cause of Action Inst. v. Export-Import Bank, No. 19-

cv-1915 (JEB),

, at *9 (D.D.C. Jan. 27, 2022) (upholding assertion of

foreseeable harm under Exemption 5 when disclosure would have informed bad actors of agency

vulnerabilities, thereby chilling internal agency deliberations).

Plaintiffs’ other arguments are unavailing. First, Plaintiffs argue that the declarant,

Cynthia Munita, lacks personal knowledge and “relies too much on un-sourced hearsay” in her

declaration. Pls.’ Br. at 16. Not so. In the first place, Munita worked as an immigration services

7 officer for many years before becoming a FOIA officer. See Munita Decl. ¶ 1. She has at least

some knowledge about how immigration officials conduct their business. More, “FOIA

declarants may include statements in their declarations based on information they have obtained

in the course of their official duties.” Hainey v. DOI,

(D.D.C. 2013)

(cleaned up). That includes information “relayed to [the declarant] by her subordinates.”

DiBacco v. Dep’t of the Army,

(D.C. Cir. 2019). Munita attests that her

declaration includes information provided “by other USCIS employees.” Munita Decl. ¶ 4. That

statement is enough.

The Court also affords agency declarations a presumption of good faith rebuttable only

by “contradictory evidence in the record or by evidence of the agency’s bad faith.” Aguiar v.

DEA,

, 734–35 (D.C. Cir. 2017). Plaintiffs’ musings about who told what to

Munita, see Pls.’ Br. at 19, are “speculative claims” incapable of rebutting that presumption.

SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991).

The same presumption likewise defeats Plaintiffs’ argument that a typographical error in

the declaration shows Munita’s lack of knowledge. See Pls.’ Br. at 29. She suggests in one

fragment of one sentence that multiple people write the Assessments. See Munita Decl. ¶ 15

(“Moreover, revealing the internal deliberations and analysis of USCIS asylum and supervisory

asylum officers . . . .”). That suggestion is wrong—only asylum officers write the Assessments.

See Def.’s Reply, ECF No. 32 at 6, n.1. The Court agrees with the agency, however, that this

mistake is a “trivial matter” insufficient to rebut the good-faith presumption afforded the

declaration, which everywhere else affirms that only asylum officers contribute to Assessments.

SafeCard,

.

8 Second, Plaintiffs argue that Munita nowhere explains “how officers would behave

differently in the future” or “how information in one assessment leads to fraud in a future case.”

Pls.’ Br. at 23. Plaintiffs are wrong on both counts. Munita describes how officers would be less

forthcoming were their assessments disclosed publicly, thereby harming the agency’s mission.

See Munita Decl. ¶¶ 14–15. That is a sufficient explanation of future officer behavior. See

Machado Amadis, 971 F.3d at 371 (explaining that disclosure would discourage government

actors from “candidly discussing their ideas . . . thus impairing the forthright internal discussions

necessary for efficient and proper” agency adjudications (cleaned up)). And Munita clearly

explains how disclosure could lead to fraud. Bad actors would “tailor” their applications—such

as by “fabricat[ing] evidence or testimony”—to receive asylum “under false pretenses.” Munita

Decl. ¶ 15.

Third, Plaintiffs ding the declaration for not adequately explaining “how disclosure of

sources or authorities cited in [A]ssessments would result in harm.” Pls.’ Br. at 26. The Court

easily rejects this argument. DHS has adequately explained what harm would result from

disclosure of an asylum officer’s “analyses, impressions, and recommendations” of a particular

applicant. Munita Decl. ¶ 14. Cited sources are part of that analysis, so DHS’s adequate

assertion of harm for the documents also applies to the sources cited within.

Fourth, Plaintiffs make multiple public policy arguments for why DHS should disclose

the Assessments. See, e.g., Pls.’ Br. at 27 (“What if a source is unreliable?”); 28 (“Are asylum

officers following their instructions?”). Plaintiffs even compare Assessments to district court

decisions, implying that disclosure will help transparency in government. See id. at 25. These

arguments are far afield of foreseeable harm, the only topic for remand. They are therefore

irrelevant.

9 Finally, Plaintiffs assert that DHS has not released all reasonably segregable information.

See Pls.’ Br. at 34–35. Like Plaintiffs’ public policy arguments, segregability is outside the

scope of this remand. The Court stands by its segregability analysis in the previous opinion. See

Emuwa,

, at *10–*11.

* * *

In sum, DHS has adequately shown that foreseeable harm would result from disclosure of

the Assessments. Reporters Committee does not counsel otherwise. For the reasons discussed

here and in the prior opinion, the Court will grant the agency’s motion for summary judgment

and will deny Plaintiffs’ cross motion. A separate Order will issue.

2022.05.09 17:20:56 -04'00' Dated: May 9, 2022 TREVOR N. McFADDEN, U.S.D.J.

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