New York Times Co. v. United States Department of Homeland Security
New York Times Co. v. United States Department of Homeland Security
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
In Zadvydas v. Davis, the Supreme Court held that individuals who have been found unlawfully present in the United States and are scheduled for removal may not be detained for a period longer than six months where there is no significant likelihood of removal in the reasonably foreseeable future.
II. STATEMENT OF FACTS
When an alien is designated for removal from the United States, DHS, and specifically Immigrations and Customs Enforcement (“ICE”), generally places the individual in administrative detention until removal is effected.
As part of a journalistic investigation into the government’s handling of immigration matters, Sacchetti researched the government’s procedures and policies for releasing aliens convicted of crimes who were designated for removal to their home country, but whose administrative detention implicated the Supreme Court’s ruling in Zadvydas
Sacchetti submitted a FOIA request to ICE on September 28, 2011, which was subsequently modified into a request seeking “a list of convicted criminal aliens released by ICE, but not deported, since 1/1/2008 due to the 2001 Supreme Court decision in Zadvydas [ ]” (the “Request”).
III. APPLICABLE LAW AND STANDARD
Balancing the objective of “broad disclosure of Government records” against recognition that such disclosure “may not always be in the public interest,”
FOIA cases are generally resolved on motions for summary judgment,
ICE withheld the names of the Released Individuals pursuant to FOIA Exemptions 6 and 7(C). Exemption 6 exempts from disclosure information from “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’”
IV. DISCUSSION
A. Disclosure of the Names of Released Individuals Implicates a Privacy Interest
It is well-established that an individual has a privacy interest in controlling information concerning his or her person, where release of that information may cause “embarrassment in their social and community relationships,” or result in “retaliatory action.”
DHS argues that “[t]he Released Individuals have a strong interest in avoiding any embarrassment or retaliation that may be caused by the Government’s publicly identifying them both as convicted criminals and illegal aliens.”
The Supreme Court has confirmed that there is a privacy interest in not publicizing as “federal compilations” events such as “arrests, charges, convictions, and incarcerations,” even those which “have been previously disclosed to the public.”
B. The Public Interest in Disclosure Outweighs the Privacy Interests
Having concluded that there is a privacy interest, albeit a diminished one, in the information contained in the Releasee Spreadsheet, the Court must weigh that privacy interest against the public interest in disclosure.
The public has an interest in knowing how ICE handles aliens convicted of crimes who are required to be released pursuant to Zadvydas when their detention period exceeds six months. This is “[o]fficial information that sheds light on an agency’s performance of its statutory duties.”
Plaintiffs do not assert a direct public interest in knowing the names of individuals being released pursuant to Zadvydas. Rather, they argue that disclosure of the names of the Released Individuals would permit them to obtain information that
The Second Circuit has observed that “assertions of a public interest in ‘monitoring’ governmental operations ‘have not been viewed favorably by the courts,’ ” but accepted this interest as “within the ambit of public interests.”
The privacy interest at issue in this case — that of convicted criminals in not releasing in compiled form information which is already public — is significantly diminished compared to those at issue in Associated Press (Guantanamo Bay detainees)
Plaintiffs have established that they would use the individual names in combination with other public information to draw conclusions about the performance of the DHS — information which the government agency, for whatever reason, is disinclined to disclose on its own.
V. CONCLUSION
For the foregoing reasons, summary judgment is granted in Plaintiffs’ favor and DHS is ordered to disclose the names of the Released Individuals. The Clerk of the Court is directed to close these motions (Docket Nos. 4 and 7) and this case.
SO ORDERED.
MEMORANDUM OPINION AND ORDER
I. BACKGROUND
Following the Court’s June 13, 2013 Opinion and Order granting summary judgment in Plaintiffs’ favor, the Government attempted to file a timely notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(5)(A).
On June 13, 2013, the Court granted summary judgment in Plaintiffs’ favor and ordered the United States Department of Homeland Security (“DHS”) to disclose a list of certain convicted, but not deported, criminal aliens released by Immigrations and Customs Enforcement (“ICE”).
On August 26, 2013, Plaintiffs’ counsel contacted the Government to ask why the notice was not on ECF.
II. APPLICABLE LAW AND STANDARD
Under Rule 6(b), where a deadline has passed, the court may grant an extension for a late action where the omission is “the result of excusable neglect.”
III. DISCUSSION
Three of the four factors weigh in the Government’s favor. First, Plaintiffs’ counsel was not prejudiced, given that the Government emailed it a copy of the notice a few hours after its attempted filing.
The Court’s predominant consideration, however, is the reason for the delay, particularly whether it was within the Government’s control. It is undisputed that the Government failed to confirm that its filing was successful.
The ECF Rules state no less than four times that: “It remains the duty of Filing and Receiving Users to review the docket report.”
I realize that the Government’s error was inadvertent and that denial of its request might therefore seem unduly harsh. But filing deadlines must be consistently enforced for the greater good. There is no exception for a filer’s carelessness, especially where the filer is a Government attorney. The Second Circuit has held that even pro se appellants who inadvertently miss filing deadlines do not receive the benefit of excusable neglect.
IY. CONCLUSION
For the foregoing reasons, the Government’s motion to file a late notice of appeal is hereby denied.
SO ORDERED.
. 533 U.S. 678, 701, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
. 5 U.S.C. § 552 etseq.
. See 8 U.S.C. § 1231; Declaration of Ryan Law in Support of Defendant's Motion for Summary Judgment ("Law Decl.") ¶ 7.
. See Law Decl. ¶ 8.
. See id. ¶ 9.
. Zadvydas, 533 U.S. at 691, 121 S.Ct. 2491.
. See Declaration of Maria Sacchetti ("Sacchetti Decl.”) ¶¶ 2-6.
. Plaintiffs' Memorandum of Law in Support of Their Cross-Motion for Summary Judgment and in Opposition to Defendant’s Motion for Summary Judgment ("Pl. Mem.”) at 3 (citing Sacchetti Decl. ¶¶ 4, 5, 9, 12). Sacchetti's research revealed that in some cases courts, as well as victims, were told at sentencing that the defendant would be removed following release, but in fact the defendant was not removed and the perpetrators victimized those who testified against them. See Sacchetti Decl. ¶¶ 5, 11-15.
. See Ex. B to Law Decl.
. See Ex. C to Law Decl.
. See id.; Complaint ¶ 11.
. See Ex. D to Law Decl.
. See Ex. E to Law Decl.
. CIA v. Sims, 471 U.S. 159, 166, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985); American Civil Liberties Union v. United States Dep’t of Justice, 681 F.3d 61, 69 (2d Cir. 2012) (“ACLU v. DOJ”).
. See 5 U.S.C. § 552(b); United States Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989); Associated Press v. United States Dep’t of Defense, 554 F.3d 274, 283-84 (2d Cir. 2009).
. See 5 U.S.C. § 552(a)(4)(B); ACLU v. DOJ, 681 F.3d at 69.
. See New York Times Co. v. United States Dep’t of Justice, 915 F.Supp.2d 508, 530-31 (S.D.N.Y. 2013) (compiling cases).
. Fed.R.Civ.P. 56(c).
. See United States Dep't of State v. Ray, 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991); Assoc. Press, 554 F.3d at 283.
. ACLU v. DOJ, 681 F.3d at 69 (quoting Wilner v. National Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009)).
. See Wood v. FBI, 432 F.3d 78, 85 (2d Cir. 2005). This presumption of good faith, however, does not abrogate the court’s duty to undertake de novo review of the agency’s decision. See Wilner, 592 F.3d at 69, 73.
. 5 U.S.C. § 552(b)(6). ICE argues that the records at issue constitute "similar files” within the meaning of Exemption 6 as that phrase encompasses " 'records on an individual which can be identified as applying to that individual.' ” Memorandum of Law in Support of Defendant’s Motion for Summary Judgment ("Def. Mem.”) at 5 n. 3 (quoting Assoc. Press, 554 F.3d at 291).
. 5 U.S.C. § 552(b)(7)(C).
. See United States Dep't of Defense v. FLRA, 510 U.S. 487, 496-97 n. 6, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (Exemption 7(C) "is more protective of privacy than Exemption 6” because the former "applies to any disclosure that could reasonably be expected to constitute an invasion of privacy that is unwarranted”). See also Assoc. Press, 554 F.3d at 290-91 ("Because we find that Exemption 7(C) applies to the redactions of detainees' identifying information, we do not need to address the applicability of Exemption 6.”).
. Assoc. Press, 554 F.3d at 284.
. See id. at 285. See also FLRA v. United States Dep’t of Veterans, 958 F.2d 503, 509 (2d Cir. 1992) ("Only where a privacy interest is implicated does the public interest for which
. National Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004).
. Ray, 502 U.S. at 176-77, 112 S.Ct. 541.
. See Center for Nat’l Sec. Studies v. United States Dep't of Justice, 331 F.3d 918, 945-46 (D.C.Cir. 2003) (Tatel, J., dissenting) ("Even though being arrested subjects a person suspected of criminal activity to embarrassment and potentially more serious reputational harm, the law is nevertheless clear that no right of privacy is violated by the disclosure of an official act such as an arrest”).
. Def. Mem. at 7.
. Pl. Mem. at 9.
. Id.
. United States Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762-63, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Accord American Civil Liberties Union v. United States Dep’t of Justice, 655 F.3d 1, 8 (D.C.Cir. 2011) ("The Court [in Reporters Comm.] held 'as a categorical matter’ that 'a third party’s request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen’s privacy,’ and that such records may therefore not be disclosed in the absence of a cognizable public interest.”).
. Reporters Comm., 489 U.S. at 764, 109 S.Ct. 1468. Accord id. at 753, 109 S.Ct. 1468 ("Although much rap-sheet information is a matter of public record, the availability and dissemination of the actual rap sheet to the public is limited.”).
. Id. at 762, 109 S.Ct. 1468.
. "The only remotely geographical information provided on the Releasee Spreadsheet is the administratively created Area of Responsibility, each of which covers a large geographical area[], often several states.” Pl. Mem. at 9. In fact, most Areas of Responsibility appear to be metropolitan areas.
. See Reporters Comm., 489 U.S. at 764, 109 S.Ct. 1468 ("The very fact that federal funds have been spent to prepare, index, and maintain these criminal-history files demonstrates that the individual items of information in the summaries would not otherwise be 'freely available' either to the officials who have access to the underlying files or to the general public. Indeed, if the summaries were ‘freely available,’ there would be no reason to invoke the FOIA to obtain access to the information they contain.”).
. See Favish, 541 U.S. at 172, 124 S.Ct. 1570 (“Where the privacy concerns addressed by exemption 7(C) are present, the exemption requires the person requesting the information to establish a sufficient reason for disclosure”). See also Long v. Office of Pers. Mgmt., 692 F.3d 185, 193 (2d Cir. 2012).
. Assoc. Press, 554 F.3d at 288 (quoting Reporters Comm., 489 U.S. at 772, 109 S.Ct. 1468) (alterations in original).
. Reporters Comm., 489 U.S. at 773, 109 S.Ct. 1468 (holding that such information "falls squarely within [FOIA’s] statutory purpose”).
. See Buffalo Evening News, Inc. v. United States Border Patrol, 791 F.Supp. 386, 400 (W.D.N.Y. 1992) (agreeing "that disclosure of the statutory basis for excluding a certain alien based on ideological grounds, combined with disclosure of the alien’s occupation and country of origin, enables the public to assess much about the government’s practice and policy toward ideological exclusion” but finding that in that case "disclosure of the purely personal information redacted pursuant to Exemption 7(C) would not shed much light on agency practice to any degree sufficient to outweigh the strong privacy interests involved”).
. Pl. Mem. at 15. Accord Compl. ¶ 15 (learning names of Released Individuals would allow plaintiffs to learn "whether [ICE] is making considered judgments as to whether a convicted alien is likely to commit a crime again”).
. Pl. Mem. at 15-16 (emphasis added).
. Examples of what Sacchetti's research uncovered include: DHS released McCarthy Larngar shortly after ICE declared in writing that he was a danger to the community, after which he committed another crime and returned to jail; DHS released Huang Chen without warning a prior victim, and he eventually stalked and killed that victim; Antonio Rodrigues was released after obtaining a reduced criminal sentence based on expected deportation and now faces new charges of shooting a man between the eyes. See Pl. Mem. at 15.
. Hopkins v. United States Dep't of Hous. & Urban Dev., 929 F.2d 81, 88 (2d Cir. 1991) (quoting Heights Cmty. Cong. v. Veterans Admin., 732 F.2d 526, 530 (6th Cir. 1984)).
. Assoc. Press, 554 F.3d at 289-90 (holding that "the speculative nature of the result is insufficient to outweigh the detainees’ privacy interest in nondisclosure”).
. Id. (citations omitted) (discussing Ray, 502 U.S. at 177, 112 S.Ct. 541, wherein "the FOIA requester argued that the public interest would be served by disclosure of the Haitian returnees' names because that information would allow the public to conduct its own interviews of the returnees to see if they corroborated the information in the State Department’s interview transcripts”).
. Id. at 290 (quoting Ray, 502 U.S. at 179, 112 S.Ct. 541).
. See id. at 280.
. 502 U.S. at 166, 112 S.Ct. 541.
. Hopkins, 929 F.2d at 88 (emphasis in original) (citing Reporters Comm., 489 U.S. at 774, 109 S.Ct. 1468).
. Id. Of course there is always the possibility that, if the individual names are disclosed, Plaintiffs or someone other than Plaintiffs could contact the individuals personally. However, that is always a possibility when information is disclosed — the inquiry is whether the stated purpose of the FOIA request justifies the possible intrusion on privacy. Moreover, because these records are already public, it is already possible, albeit more difficult, to contact the Released Individuals, as Sacchetti’s reporting proves. The requested disclosure would not release additional information that would facilitate personal intrusions because unlike in Hopkins, the individuals' addresses are not the subject of a disclosure request. See 929 F.2d at 88 (declining to release individual names and addresses).
. Pl. Mem. at 16.
. There is merit in plaintiffs’ argument that DHS cannot dismiss the value of the Globe's inquiry by asserting that the troubling cases "do not indicate any failing on the part of the agency” but refuse to provide the data that would refute the Globe’s suspicions about the practices pursuant to Zadvydas. See Pl. Mem. at 16 (quoting Def. Mem. at 9-10). See also id. at 17 ("DHS cannot have it both ways: It cannot keep secret the very information that would [directly] answer a dispositive question in this case and then criticize the Globe for failing to scale the wall of secrecy that DHS itself has built.”).
. Favish, 541 U.S. at 174, 124 S.Ct. 1570.
. Hopkins, 929 F.2d at 88.
. See 8/27/13 Letter from Assistant U.S. Attorney ("AUSA”) Cristine Irvin Phillips Letter to the Court ("8/27/13 Philips Ltr.”) at 1.
. See Declaration of AUSA Phillips ("Phillips Decl.”), Ex. 1 to 8/27/13 Phillips Ltr., at 1.
. See 8/29/13 Letter from David E. McCraw, Counsel for Plaintiffs, to the Court ("8/29/13 McCraw Ltr.”), at 3; Phillips Decl. at 1.
. See 8/27/13 Phillips Ltr. at 1.
. See New York Times Co. v. Department of Homeland Sec., No. 12 Civ. 8100, 959 F.Supp.2d 449, 456-57, 2013 WL 2952012, at *5 (S.D.N.Y. June 13, 2013).
. See Phillips Decl. at 1.
. See id.
. See id.
. See 8/29/13 McCraw Ltr. at 3.
. See Phillips Decl. at 1.
. See Phillips Ltr. at 1. Nothing in the record indicates that the error was technical. See 9/10/13 Hearing Transcript (“9/13 Tr.”) at 28:10-16. This Court contacted the Clerk of the Court who confirmed that ECF experienced no technical problems on August 16, 2013.
. See Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 391, 113 S.Ct. 1489, 123 L.Ed.2d 74 (quoting Fed.R.Civ.P. 6(b)).
. See id. at 395, 113 S.Ct. 1489; Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003).
. Pioneer, 507 U.S. at 395, 113 S.Ct. 1489.
. See Williams v. KFC Nat’l Mgmt. Co., 391 F.3d 411, 415-16 (2d Cir. 2004); Silivanch, 333 F.3d at 366 (citing Pioneer, 507 U.S. at 395, 113 S.Ct. 1489).
. See Williams, 391 F.3d at 411.
. See Phillips Decl. at 1.
. See 8/27/13 Philips Ltr. at 1; Fed. R.App. P. 4(a)(5)(A)(ii) ("The district court may extend the time to file a notice of appeal if ... regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.”).
. See 8/29/13 McCraw Ltr. at 3 ("The [Government's] error ... was unfortunate and inadvertent, but not excusable.”).
. See 8/29/13 McCraw Ltr. at 3.
. See 9/11/13 Letter from AUSA Phillips to the Court ("9/11/13 Philips Ltr.”) at 1-2; 9/13 Tr. at 8:15-16 (Phillips: "This was a complete fluke insofar as ... myself, who has filed these thingfs] many times.") (emphasis added).
. See ECF Filing Confirmation Page, Ex. 1 to 9/11/13 Letter from David E. McCraw to the Court ("9/11/13 McCraw Ltr.”).
. See id.
. See id. at 1.
. 9/11/13 Phillips Ltr. at 1. The Government alleges that notifications of transmission to the Second Circuit usually occur within minutes of a filing, but "slightly less frequently” occur between one and six days after the filing. Id.
. While Phillips alleges that she has never filed a notice of appeal before, the S.D.N.Y. docket reveals that she has been an attorney of record as an appellee in several cases. Thus, she would be familiar with the notification process.
. See 9/11/13 McCraw Ltr. at 2 (quoting E.C.F.R. §§ 9, 10, 13, and 19.6).
. See 8/29/13 McCraw Ltr. at 3 (quoting Silivanch, 333 F.3d at 366).
. See Dennett v. CIA, 252 Fed.Appx. 343, 344 (2d Cir. 2007) (finding no excusable neglect where a party mailed a notice to the wrong address on the filing deadline date).
. Silivanch, 333 F.3d at 366-67.
. See Canfield v. Van Atta Buick/GMC Truck Inc., 127 F.3d 248, 250 (2d Cir. 1997) (recognizing the Local Rules of the Northern District of New York as court rules).
. While technically not a court rule under 28 U.S.C. § 2071, the ECF Rules were promulgated by the Court on December 1, 2003, and amended most recently on May 22, 2013.
. See New York Times Co., 959 F.Supp.2d at 456-57, 2013 WL 2952012, at *5.
Reference
- Full Case Name
- The NEW YORK TIMES COMPANY and Maria Sacchetti v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY
- Cited By
- 4 cases
- Status
- Published