20-3837 Knight v. USCIS et al.

In the United States Court of Appeals For the Second Circuit

August Term, 2021 No. 20-3837

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Plaintiff-Appellee,

v.

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, UNITED STATES DEPARTMENT OF STATE, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants-Appellants,

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendants.

On Appeal from the United States District Court for the Southern District of New York

ARGUED: JANUARY 6, 2022 DECIDED: APRIL 6, 2022 Before: JACOBS, RAGGI, and NARDINI, Circuit Judges.

Defendants-Appellants United States Citizenship and Immigration Services, United States Department of State, and United States Immigration and Customs Enforcement appeal from three orders of the district court requiring them to produce documents in response to requests from Plaintiff-Appellee the Knight First Amendment Institute at Columbia University under the Freedom of Information Act. The district court (Andrew Carter, J.) ordered disclosure of three sets of documents: (1) portions of Volume 9 of the Foreign Affairs Manual; (2) the questions that are used to determine whether to apply the “Terrorism Related Inadmissibility Ground” to applicants for immigration benefits; and (3) a memo titled “ICE Ability to Use 212(a)(3)(C) Foreign Policy Charge.” We hold that the Department of State and United States Citizenship and Immigration Services properly withheld the first two sets of documents under FOIA Exemption 7(E). We therefore REVERSE the orders of the district court requiring disclosure of those materials. With respect to the third, it is unclear whether the agency has already complied fully with the district court’s order, in which case its appeal would be moot. Accordingly, we REMAND to allow the parties to further develop the record.

CATHERINE CRUMP (Megan Graham, Samuelson Law, Technology & Public Policy Clinic, U.C. Berkeley School of Law, Berkeley, CA, Xiangnong Wang, Carrie DeCell, Alex Abdo, Jameel Jaffer, Knight First Amendment Institute at Columbia University, New York, NY, on the brief), Samuelson Law, Technology & Public Policy Clinic, U.C. Berkeley School of Law, Berkeley, CA, for Plaintiff-Appellee.

ELLEN BLAIN, Assistant United States Attorney (Sarah S. Normand, Benjamin H. Torrance, Assistant United States Attorneys on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Defendants- Appellants.

WILLIAM J. NARDINI, Circuit Judge:

The Freedom of Information Act,

(“FOIA”),

enacted in 1966, allows citizens to find out what their government is

up to. FOIA embodies a strong policy in favor of disclosing materials

in response to citizens’ requests. In some circumstances, though,

Congress has determined that other interests—such as personal

privacy, national security, or foreign policy—outweigh the need for

transparency. These circumstances are embodied by a limited set of

3 statutory exemptions from FOIA’s disclosure requirements. This case

requires us to determine the scope of one such exemption.

Defendants-Appellants United States Citizenship and

Immigration Services (“USCIS”), United States Department of State

(“DOS”), and United States Immigration and Customs Enforcement

(“ICE”) appeal from three orders of the United States District Court

for the Southern District of New York (Andrew Carter, J.) entered on

September 13, 2019, September 23, 2019, and September 13, 2020,

requiring them to produce certain documents in response to FOIA

requests from the Knight First Amendment Institute at Columbia

University (“Knight”). Knight requested documents concerning the

agencies’ interpretation and implementation of provisions of the

Immigration and Nationality Act (“INA”) that allow exclusion of

aliens from the United States based on the aliens’ connections to or

endorsement of terrorist activity. The parties have resolved several

of Knight’s requests, leaving only three sets of documents at issue on

4 appeal: (1) portions of Volume 9 of the Foreign Affairs Manual; (2) the

questions that USCIS uses to determine whether to apply the

“Terrorism Related Inadmissibility Ground” to applicants for

immigration benefits; and (3) an ICE memo titled “ICE Ability to Use

212(a)(3)(C) Foreign Policy Charge.” We hold that DOS and USCIS

properly withheld the first two sets of documents under FOIA

Exemption 7(E). With respect to the third, the record is unclear as to

whether ICE has already complied fully with the district court’s

order, which would render its appeal moot. We therefore remand for

further proceedings on that issue.

BACKGROUND

I. Knight’s Freedom of Information Act Request

The INA governs immigration and citizenship in the United

States. See 8 U.S.C. ch. 12. Section 212 of the INA excludes from

admission to the U.S. any alien who “endorses or espouses terrorist

activity or persuades others to endorse or espouse terrorist activity or

5 support a terrorist organization[,]”

(a)(3)(B)(i)(VII), or

who is “a representative . . . of . . . a political, social, or other group

that endorses or espouses terrorist activity[,]”

§ 1182(a)(3)(B)(i)(IV)(bb) (together, the “endorse-or-espouse

provisions”). The INA also excludes aliens whose admission the

Secretary of State “has reasonable ground to believe would have

potentially serious adverse foreign policy consequences for the

United States.” Id. § 1182(a)(3)(C)(i) (the “foreign-policy provision”).

An alien is not excludable “because of the alien’s past, current, or

expected beliefs, statements, or associations . . . [that] would be lawful

within the United States, unless the Secretary of State personally

determines that the alien’s admission would compromise a

compelling United States foreign policy interest.” Id.

§ 1182(a)(3)(C)(iii).

On August 7, 2017, Knight filed FOIA requests with several

executive agencies, including DOS, USCIS, and ICE. Knight asserted

6 that its FOIA requests were prompted by President Donald Trump’s

statements and executive orders related to the above-described INA

provisions. Specifically, President Trump purportedly stated his

intention to institute an “‘ideological screening test’ for admission

into the United States and said that a ‘new screening test’ involving

‘extreme, extreme vetting’ was overdue.” Joint App’x at 37 (quoting

Karen Deyoung, Trump Proposes Ideological Test for Muslim Immigrants

and Visitors to the U.S., Wash. Post (Aug. 15, 2016),

https://perma.cc/G9SCEPHT). President Trump subsequently issued

two executive orders that are at issue here: Exec. Order No. 13769,

(Jan. 27, 2017) and Exec. Order No. 13780,

, 13215 (Mar. 6, 2017) (together, the “Executive Orders”).

The Executive Orders directed executive departments,

including DOS and the Department of Homeland Security (under

which USCIS and ICE fall), to develop a more robust vetting program

for immigrants entering the country. They required “the

7 development of a uniform baseline for screening and vetting

standards and procedures” and processes to “ensur[e] the proper

collection of all information necessary for a rigorous evaluation of all

grounds of inadmissibility.” Exec. Order No. 13780, 82 Fed. Reg. at

13215. 1

Knight sought several categories of records related to the way

that agencies interpreted and implemented the endorses-or-espouses

provisions and the foreign-policy provision of the INA under the

Executive Orders. The agencies released a substantial volume of

material in response to Knight’s request but withheld some

documents in whole or in part under various FOIA exemptions. For

example, USCIS produced 957 pages in their entirety but withheld 357

pages. The parties resolved most disputes about the scope of the

1President Joseph Biden revoked the Executive Orders on the first day of his administration. See Proclamation No. 10,141,

(Jan. 20, 2021). Knight asserts that it maintains an interest in the material it requested because of “the expanded focus on social media accounts in immigration vetting in recent years, and the Biden Administration’s active review and reconsideration of these policies.” Knight Br. at 8.

8 agencies’ withholding between themselves, and Knight filed suit

seeking an order requiring the agencies to produce a subset of the

documents about which the parties were unable to agree. Before the

district court, the parties filed cross-motions for partial summary

judgment. Three sets of records addressed in the district court’s

rulings on those motions remain at issue in this appeal: (1) portions

of Volume 9 of the Foreign Affairs Manual (“9 FAM”); (2) a set of

training slides, manuals, and guides containing questions relating to

the Terrorism Related Inadmissibility Grounds (the “TRIG

questions”); and (3) an ICE memorandum titled “ICE Ability to Use

212(a)(3)(C) Foreign Policy Charge” (the “ICE memo”).

The court addressed the 9 FAM records in its September 13,

2019, ruling on the parties’ first cross-motions for summary judgment.

It addressed the TRIG questions and the ICE memo in its September

23, 2019, ruling on the parties’ second cross-motions for summary

judgment. And it addressed the parties’ additional arguments related

9 to the 9 FAM records and TRIG questions in its September 13, 2020,

ruling on the government’s motion for clarification and

reconsideration.

A. Three Sections of the Foreign Affairs Manual

Knight requested “[a]ll Foreign Affairs Manual sections

(current and former) relating to the endorse or espouse provisions or

the foreign policy provision, as well as records discussing,

interpreting, or providing guidance regarding such sections.” Joint

App’x at 39.

DOS describes the Foreign Affairs Manual and the associated

Handbooks as

a single, comprehensive, and authoritative source for the Department’s organization structures, policies, and procedures that govern the operations of the State Department, the Foreign Service and, when applicable, other federal agencies. The FAM (generally policy) and the [Foreign Affairs Handbooks] (generally procedures) together convey codified information to Department staff and contractors so they can carry out their responsibilities in accordance with statutory, executive and Department mandates.

10 DOS, Foreign Affairs Manual and Handbook, https://fam.state.gov

[https://perma.cc/5JJC-TKC6] (last visited Mar. 22, 2022).

DOS provided relevant portions of the manual to Knight but

redacted certain sections of 9 FAM. In general, 9 FAM includes

“directives and guidance” for DOS personnel adjudicating U.S. visas.

9 FAM 101.1. DOS asserted that the redacted portions of the manual

were exempt from disclosure under Exemption 7(E). 2 Versions of

three partially redacted sections remain at issue: 9 FAM 302.6, 9 FAM

40.32, and 9 FAM 302.14.

• Eight versions of 9 FAM 302.6. DOS redacted eight versions of

9 FAM 302.6, titled “Ineligibilities Based on Terrorism Related

Grounds.” Joint App’x at 66. It asserted that the redacted

2 Exemption 7(E) excludes from the disclosure requirement “records or information compiled for law enforcement purposes [the release of which] . . . would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”

(b)(7)(E).

11 portions “disclose law enforcement investigation techniques,

procedures, and guidelines.”

Its Vaughn index 3 lists each

redaction and explains how the redaction falls within the

exemption. For example, “9 FAM 302.6-2(B)(1)(b). reveals

interagency cooperation procedures during the process of

checking for terrorism-related ineligibilities,” id.; and “9 FAM

302.6-2(B)(4)e. (2) and (5) gives guidelines for when spouses

and children trigger the requirement for further security

investigation and how to conduct that process,”

. DOS

concluded that “[d]isclosure of any of the above information

could reasonably be expected to risk circumvention of the law

3As we have explained: The Vaughn index procedure was developed to avoid the cumbersome alternative of routinely having a district court examine numerous multi- page documents in camera to make exemption rulings. See Vaughn v. Rosen,

(D.C. Cir. 1973). . . . A Vaughn index typically lists the titles and descriptions of the responsive documents that the Government contends are exempt from disclosure. In some cases detailed affidavits from agency officials may suffice to indicate that requested documents are exempt from disclosure. N.Y. Times Co. v. U.S. Dep't of Just.,

, 438–39 (2d Cir.), supplemented by

(2d Cir. 2014) (footnotes omitted).

12 because terrorists and other bad actors could use it to conceal

derogatory information, provide fraudulent information, or

otherwise circumvent the security checks put in place to ensure

that terrorists and other bad actors cannot gain visas into the

United States.” Id. at 68.

• Three versions of 9 FAM 40.32. DOS redacted three versions

of 9 FAM 40.32, which it reports are “earlier iterations of

sections that are now incorporated into 9 FAM 302.6.” Id. As

with 9 FAM 302.6, DOS provided an explanation for each

redaction. It provided the same conclusion for withholding as

with 9 FAM 302.6 (that is, disclosure could allow terrorists or

other bad actors to circumvent the law).

• One version of 9 FAM 302.14. DOS made several redactions to

one version of 9 FAM 302.14, titled “Ineligibility Based on

Sanctioned Activities.” Id. at 69. It asserted that the redacted

portions “disclose law enforcement investigation techniques,

13 procedures, and guidelines” about several topics. Id. For

example, it stated that the redacted portions included

“guidelines for conducting the security investigation process,

including whether certain procedures are mandatory, and

what information to include in a request for those procedures.”

Id.

The district court held that 9 FAM was not “‘compiled for law

enforcement purposes’ even if some sections of the FAM may serve

those purposes.” Knight First Amend. Inst. at Columbia Univ. v. U.S.

Dep’t of Homeland Sec.,

, 332 (S.D.N.Y. 2019)

(“Knight I”). Because DOS is a “mixed-function agency” performing

both administrative and law enforcement functions, the court

explained it would “‘scrutinize with some skepticism the particular

purpose claimed for disputed documents redacted under FOIA

14 Exemption 7.’”

(quoting Tax Analysts v. IRS,

(D.C.

Cir. 2002)). 4

First, the district court noted that some of the redacted portions

fell within the “Definitions” section of 9 FAM and that that section

appeared to derive from definitions included in the INA.

at 332–

33. The district court thus held that “[t]he similarity between the

withheld information and the INA’s text . . . suggests Exemption 7(E)

does not apply.” Id. at 333.

Second, DOS admitted that the FAM “generally consists of

policy.” The district court agreed, observing that “mere descriptions

of codified law and policy, even those including interpretation and

application of immigration laws and regulations, are not protected

under Exemption 7(E).” Id. at 333 (internal quotation marks and

citations omitted). Rather, “[t]o be ‘compiled for law enforcement

4 We have frequently noted the District of Columbia Circuit’s “particular FOIA expertise” and looked to its decisions for guidance in interpreting the FOIA. See, e.g., Whitaker v. Dep’t of Commerce,

, 206 & n.25 (2d Cir. 2020).

15 purposes,’ the information must go a step further and describe

‘proactive steps’ for preventing criminal activity and maintaining

security.”

(quoting Milner v. Dep’t of the Navy,

, 582

(2011) (Alito, J., concurring)).

Finally, the court noted that some records appeared to contain

“interpretive information” which DOS characterized as “guidelines,”

and held that this type of interpretive document falls outside of

Exemption 7(E). Id. For example, DOS’s description of 9 FAM 302.6-

3(B) explained that it included “guidelines for situations in which an

individual may cease to be inadmissible.” Id. (internal quotation

marks omitted). The court held that it was not clear “how explaining

to the public what may constitute grounds for inadmissibility—

essentially a legal interpretation—may potentially help an individual

circumvent the law.” Id.

16 Based on the above conclusions, the district court ordered

disclosure of the unredacted versions of the three 9 FAM sections at

issue. Id.

B. Terrorism-Related Inadmissibility Ground Questions

Next, Knight requested “[a]ll records containing policies,

procedures, or guidance regarding the application or waiver of the

endorse or espouse provisions or the foreign policy provision.” Joint

App’x at 39. In response, USCIS disclosed several presentation slides,

training manuals, and other guides. In some documents, USCIS

redacted “model or sample questions for immigration officers to use

when screening applicants.” Id. at 552. The questions are intended to

help determine, for example, “whether an applicant provides

material support for terrorism, and to determine whether an

applicant provides support to a terrorist organization under duress.”

Id. The agency explained that the process for asking the questions is

dynamic. The withheld material includes not only “TRIG specific

17 model questions that USCIS immigrations officers should ask when

interviewing applicants,” but also “follow-up questions that

immigration officers should ask when they spot issues in testimony

that could trigger a TRIG bar.” Joint App’x at 181–82.

USCIS asserted that the TRIG questions “reflect specialized

methods that USCIS has refined through its decades of enforcing

United States immigration laws.” Id. The agency asserted that the

TRIG questions were therefore exempt from disclosure under

Exemption 7(E).

The district court concluded that the TRIG questions were not

“special or technical.” Knight First Amend. Inst. at Columbia Univ. v.

U.S. Dep’t of Homeland Sec.,

, 353 (S.D.N.Y. 2019)

(“Knight II”). It also explained that those questioned using the TRIG

questions would necessarily learn the questions, and “USCIS

submit[ted] no evidence suggesting its methods are so special that

interviewees cannot parrot them to whomever they choose.”

at

18 354. The court therefore concluded that Exemption 7(E) did not

apply.

C. Memorandum Titled “ICE Ability to Use 212(a)(3)(C) Foreign Policy Charge”

Knight made several requests for legal or policy memoranda

related to the foreign policy provision. ICE identified as responsive a

memorandum titled “ICE Ability to Use 212(a)(3)(C) Foreign Policy

Charge.” It redacted the memorandum in full except for the title.

ICE stated that the memorandum “contains information

protected by the attorney-client privilege. The materials reflect

opinions, analysis, guidance and legal advice provided by attorneys

in the ICE Office of the Principal Legal Advisor (OPLA), regarding a

particular section of the INA.” 5 Joint App’x at 249. In a separate

declaration submitted in support of summary judgment, ICE

supplemented its description, further stating that the memo “includes

5ICE initially claimed attorney-client privilege over the memo but withdrew that assertion during summary judgment proceedings. Appellants’ Br. at 13 n.4.

19 a brief summary with notes and quotes for determining whether

Section 212(a)(3)(C) can be used by the Secretary of State as grounds

for inadmissibility.” Joint App’x at 563. It asserted that “th[e]

document did not bind the agency[,]” was “not organized like typical

ICE memoranda[,] and [was] not signed by or formally addressed to

ICE leadership. The memorandum simply supplie[d] factors for

consideration while providing analysis on whether the Secretary of

State should use Section 212(a)(3)(C) Foreign Policy Charge to render

an alien inadmissible under the INA.”

Thus, ICE withheld the

memo under Exemption 5 and the deliberative process privilege. 6

The district court found that ICE had failed to establish that the

ICE memo was subject to the deliberative process privilege through

Exemption 5. Specifically, the court found the document was not

“pre-decisional” because ICE did not show that the memo “‘formed

6Exemption 5 provides that disclosure is not required for “inter-agency or intra- agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.”

(b)(5).

20 an essential link in a specific consultative process, reflects the

personal opinions of the writer rather than the policy of the agency,

[or] if released would inaccurately reflect or prematurely disclose the

views of the agency.’” Knight II, 407 F. Supp. 3d at 345 (quoting

Brennan Ctr. for Just. at N.Y. Univ. Sch. of Law v. U.S. Dep’t of Just.,

(2d Cir. 2012) (emphasis added by district court)). The

memo appeared “more akin to opinions regarding how to interpret

policy rather than recommendations as to how to make policy.”

It

was therefore “post-decisional explanation” rather than “pre-

decisional advice” and fell outside of Exemption 5.

(internal

quotation marks omitted). The district court therefore directed ICE to

“disclose reasonably segregable portions of [the ICE memo] that

reflect current immigration policy.”

at 345–46.

D. Motion for Reconsideration

After the district court decided Knight I and Knight II, DOS and

USCIS moved for reconsideration and clarification of the court’s

21 decisions with respect to 9 FAM and the TRIG questions, respectively.

Knight First Amendement Inst. at Columbia Univ. v. U.S. Dep’t of

Homeland Sec., No. 1:17-CV-7572,

, at *6 (S.D.N.Y.

Sept. 13, 2020) (“Knight III”). The agencies requested clarification as

to whether the district court intended to order immediate disclosure

of the records, or to provide the agencies an opportunity to further

justify the application of Exemption 7(E).

. In the event that

the court intended to require immediate disclosure, the agencies

asked the court to reconsider and instead review the documents in

camera.

The court clarified that it intended to order immediate

disclosure of the Exemption 7(E) documents and declined the

invitation to conduct in camera review.

at *7–*8. It explained that

“DOS and USCIS submitted sufficiently detailed justifications for

withholding the FAM sections and TRIG questions respectively,” but

22 that it “understood the agencies’ arguments and was not persuaded.”

.

DISCUSSION

We review the grant of summary judgment de novo. See Long v.

Off. of Pers. Mgmt.,

(2d Cir. 2012).

FOIA is premised on “a policy strongly favoring public

disclosure of information in the possession of federal agencies.”

Halpern v. F.B.I.,

(2d Cir. 1999). Agencies are

required to disclose requested documents unless they fall within an

enumerated exemption.

at 286–87. “In order to prevail on a

motion for summary judgment in a FOIA case, the defending agency

has the burden of showing . . . that any withheld documents fall

within an exemption to the FOIA.” Carney v. U.S. Dep’t of Just.,

(2d Cir. 1994). “Summary judgment is appropriate where the

agency declarations describe the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld

23 logically falls within the claimed exemption, and are not controverted

by either contrary evidence in the record or by evidence of agency bad

faith . . . . Thus, the agency’s justification is sufficient if it appears

logical and plausible.” Am. C.L. Union v. U.S. Dep’t of Def.,

(2d Cir. 2018), as amended (Aug. 22, 2018) (cleaned up).

I. Documents Withheld under FOIA Exemption 7(E)

DOS withheld the 9 FAM records, and USCIS the TRIG

questions, under FOIA Exemption 7(E). That exemption excludes

documents from FOIA’s disclosure requirement if an agency satisfies

two conditions. First, the agency must show that the records were

“compiled for law enforcement purposes.”

(b)(7).

Second, the agency must show that the records either (1) “would

disclose techniques and procedures for law enforcement investigations

or prosecutions”; or (2) “would disclose guidelines for law

enforcement investigations or prosecutions” and “such disclosure

could reasonably be expected to risk circumvention of the law.”

at

24 § 552(b)(7)(E) (emphasis added). Thus, to withhold “guidelines for

law enforcement,” an agency must make an additional showing that

is not required before withholding “techniques or procedures.”

A. DOS established that the 9 FAM materials are exempt from disclosure under Exemption 7(E)

Knight argues that DOS has failed to establish that the 9 FAM

materials were “compiled for law enforcement purposes” or that they

include “techniques or procedures” or “guidelines” for law

enforcement whose disclosure would risk circumvention of the law.

We disagree.

1. The 9 FAM material was compiled for law enforcement purposes

“The threshold requirement for qualifying under Exemption 7

turns on the purpose for which the document sought to be withheld

was prepared.” F.B.I. v. Abramson,

(1982). The

Supreme Court has interpreted this requirement broadly. For

example, a document initially compiled for law enforcement

purposes but later provided to a different, non-law-enforcement

25 agency may still fall within Exemption 7.

at 624–25. Still, an

agency that performs both administrative and law-enforcement

functions is “subject to an exacting standard when it comes to the

threshold requirement of Exemption 7.” Tax Analysts v. I.R.S.,

(D.C. Cir. 2002). DOS acknowledges that it is a “mixed-

function” agency.

Knight argues that 9 FAM was not compiled for law

enforcement purposes because it was compiled “to help an agency

apply the law—in this case to process visa applications,” which is “not

a sufficient basis to conclude that the information was compiled to

enforce the law.” Knight Br. at 29 (citing United Am. Fin., Inc. v. Potter,

(D.D.C. 2008)). But as Justice Alito has

explained, “[t]he ordinary understanding of law enforcement

includes not just the investigation and prosecution of offenses that

have already been committed, but also proactive steps designed to

prevent criminal activity and to maintain security.” Milner v. Dep't of

26 Navy,

, 582 (2011) (Alito, J., concurring). Enforcing the law

always requires a degree of analysis and application. While some

aspects of visa adjudication might fall outside the common

understanding of “law enforcement,” the provisions at issue here do

not. DOS’s explanations for its redactions clearly establish that the

redacted provisions relate to the detection of connections to terrorism.

See, e.g., Joint App’x at 67 (summarizing reason for redactions,

including “defin[ing] terrorist activity, adding specific details and

clarification about how they fit into the security investigation

process.”). The detection and prevention of terrorism are archetypal

law-enforcement purposes.

The district court concluded that the 9 FAM documents were

not compiled for law enforcement purposes because they included

“mere descriptions of codified law and policy” and “to be compiled

for law enforcement purposes, the information must go a step further

and describe proactive steps for preventing criminal activity and

27 maintaining security.” Knight I, 407 F. Supp. 3d at 333 (internal

quotation marks omitted). That view finds no support in the text of

the exemption. The threshold inquiry under Exemption 7 is the

reason for which material was compiled, and the material should be

considered as a whole rather than broken into parts and scrutinized

in isolation. While an agency’s discrete description of law and policy

might not be subject to exemption in every context, when a larger

series of descriptions is compiled to provide comprehensive guidance

to employees in the field on how to apply and enforce the laws within

the agency’s purview, that subsequent compilation enters the

potential ambit of Exemption 7(E). An agency’s compilation of laws

and policies might provide insight into its conduct and approaches to

law enforcement even if it reveals no “proactive steps.” Such

compilation might reveal the agency’s reliance on specific laws,

reflecting the use of certain techniques or the limitations on the

implementation of those techniques in the field. Certainly, records

28 that reflect only descriptions of publicly available statutes are less

likely to create a risk of “circumvention of the law” if released.

(b)(7)(E). But that does not mean they were not “compiled

for law enforcement purposes” in the first instance—only that they

might not meet the requirements of Exemption 7(E) at the second

step. Here, DOS has established that 9 FAM includes specific

guidance to DOS employees on how to detect ties to terrorism. We

conclude, therefore, that it was “compiled for law enforcement

purposes” within the meaning of Exemption 7(E).

2. The 9 FAM materials would disclose techniques, procedures, or guidelines for enforcement

Knight next argues that, even if the records were “compiled for

law enforcement purposes,” some of DOS’s redactions fall outside

Exemption 7(E) because they do not cover material reflecting

techniques or procedures for law enforcement investigations or

prosecutions. Knight contends that the non-redacted portions of 9

FAM include only high-level summaries rather than techniques or

29 procedures. Some of the material “appears to consist of definitions

and explanations of statutory language.” Knight Br. at 34. And

“some of the withheld materials appear to summarize publicly

available statutes, memoranda, and directives.” Knight Br. at 36.

With each assertion, though, Knight asks us to draw inferences about

the redacted material from context that are contradicted by DOS’s

affidavits and Vaughn index. On summary judgment, we accept an

agency’s affidavits as true unless they are “controverted by either

contrary evidence in the record or by evidence of agency bad faith.”

Am. C.L. Union,

(internal quotation marks and

alteration omitted). Accordingly, we cannot credit Knight’s

contentions about what the 9 FAM redactions “appear” to include in

the face of an agency affidavit attesting to what they actually do

include, particularly in the absence of evidence of bad faith. In any

event, we are not persuaded that Knight’s proposed inferences from

context are reasonable. For example, Knight asserts it is “unlikely”

30 that redactions include more information than in publicly available

sources because the redactions are relatively short. Knight Br. at 37.

But DOS’s Vaughn index explicitly states that some redactions include

material that has not been publicly disclosed. See, e.g., Joint App’x at

67 (explaining that one redaction “lists credible sources of evidence

that may be used in recommending a finding, including sources that are

not public knowledge”) (emphasis added).

Knight next argues that DOS’s Vaughn index describes the

redacted material as guidelines, while they now state in their brief

that it reflects techniques or procedures. “Techniques and procedures

. . . refers to how law enforcement officials go about investigating a

crime.” Allard K. Lowenstein Int'l Hum. Rts. Project v. Dep't of Homeland

Sec.,

(2d Cir. 2010) (“Lowenstein Project”) (internal

quotation marks omitted). In contrast, “guidelines . . . generally refers

in the context of Exemption 7(E) to resource allocation.”

(internal

quotation marks omitted). While law-enforcement documents

31 revealing techniques and procedures are exempt from disclosure per

se, documents revealing guidelines are exempt only “if such

disclosure could reasonably be expected to risk circumvention of the

law.”

.

DOS’s use of the word “guideline” in its Vaughn index is not

talismanic. Rather, we must consider the substance of the agency’s

descriptions to determine whether the redacted material contains

“techniques or procedures” or “guidelines” under FOIA. The phrase

“techniques or procedures” is not defined in the statute, and we have

not ascribed to it a hypertechnical meaning. Lowenstein Project,

. Stated simply, “techniques or procedures” includes both

law enforcement methods—the actions that law enforcement

personnel take to identify and neutralize bad actors—as well as the

triggers for the application of methods. See, e.g.,

(describing as a

“technique or procedure” an agency’s instruction to agents to focus

on cash-based businesses for audit and investigation).

32 Here, we need not decide whether the 9 FAM material is

properly categorized as “techniques or procedures” rather than

“guidelines” for law enforcement. Even assuming the more rigorous

“guideline” standard applies, DOS has established that disclosure of

the 9 FAM material could reasonably risk circumvention of the law.

As DOS describes, the redactions to 9 FAM are targeted to those

specific provisions that delineate how DOS officials should identify

aliens who may have connections to terrorism, including some

specific triggers for additional scrutiny. Releasing this information

would allow an individual with actual terrorist ties to better tailor his

or her application to avoid detection. It does not matter, then,

whether the redactions reflect “techniques or procedures” or

“guidelines.” Exemption 7(E) would apply in either case.

Finally, Knight urges that the Vaughn index is too “vague and

conclusory” to support DOS’s withholding. Knight Br. at 40. To

justify withholding, an agency must provide “a relatively detailed

33 analysis of the withheld material in manageable segments without

resort to conclusory and generalized allegations of exemptions.”

Halpern,

(internal quotation marks and alteration

omitted). The agency must also “provide an indexing system that

would subdivide the withheld document under consideration into

manageable parts cross-referenced to the relevant portion of the

Government’s justification.”

(internal quotation marks and

alteration omitted). In Halpern, for example, we held that an agency’s

affidavit was sufficient where it provided a high-level explanation of

categories of information falling within the exemption, and then

cross-referenced each of those categories against redactions in the

requested documents.

at 296–98. Here, too, we conclude that DOS

satisfied its obligation to provide a detailed overview of the withheld

material. DOS’s redactions are highly targeted and discrete. See, e.g.,

Joint App’x at 128 (redacting two sentences on a page). In this context,

it would not be reasonable to expect DOS to provide more specific

34 descriptions; doing so would effectively require disclosure of the

isolated material it chose to redact. And the agency here went further

than Halpern would require, providing separate, detailed

explanations for each redaction.

In sum, we hold that DOS met its burden to establish that the

9 FAM materials were compiled for law enforcement purposes; that

they reflect techniques, procedures, or guidelines of law enforcement;

and that disclosure would reasonably risk circumvention of the law.

Accordingly, we reverse the September 13, 2019, ruling of the district

court insofar as it required DOS to disclose unredacted versions of the

9 FAM materials.

B. USCIS established that the TRIG questions are exempt from disclosure under Exemption 7(E)

We turn next to the TRIG questions. 7 The district court

concluded that the TRIG questions are not subject to Exemption 7(E),

7The district court did not address whether the TRIG questions were compiled for law enforcement purposes. Knight II, 407 F. Supp. 3d at 353. Knight does not argue

35 but USCIS argues this was error. It asserts that the TRIG questions

constitute techniques or procedures of law enforcement, and that

releasing them would enable applicants with ties to terrorism to better

tailor their answers to avoid detection. Knight responds that the

TRIG questions are not sufficiently specialized to constitute

techniques and procedures of law enforcement, that they are

effectively public given that they have been asked of many aliens

already, and that USCIS has not established that disclosure of the

TRIG questions would risk circumvention of the law. We hold that

the TRIG questions constitute “techniques or procedures” of law

enforcement, and in any event, their disclosure would reasonably risk

circumvention of the law. Our conclusion is not altered by the

possibility that some individual aliens may have been asked some or

all of the questions.

on appeal that they were not. Accordingly, we have no occasion to question whether USCIS has met its burden at the first step of analysis under Exemption 7(E).

36 The district court found that the TRIG questions were not

“techniques or procedures” because “USCIS [had] not

demonstrate[d] its methods are necessarily special or technical.”

Knight II, 407 F. Supp. 3d at 353. Knight further contends that the

government must demonstrate that the material it withholds includes

“‘specialized, calculated technique[s] or procedure[s].’” Knight Br. at 39

(quoting Am. C.L. Union Found. v. Dep’t of Homeland Sec.,

(S.D.N.Y. 2017) (“ACLU v. DHS”) (emphasis added). But

as noted earlier, the phrase “techniques or procedures” refers simply

to “how law enforcement officials go about investigating a crime.”

Lowenstein Project,

(defining “technique” as “a

technical method of accomplishing a desired aim”; and “procedure”

as “a particular way of doing or of going about the accomplishment

of something” (internal quotation marks omitted)). Our analysis is

not advanced by adding qualifiers that do not appear in the statute—

such as “special,” “specialized,” “technical,” or “calculated”—to

37 modify the terms “techniques or procedures.” It is not the province

of the courts to add words to statutes that Congress has enacted. To

the extent that the district court’s decision could be understood to

suggest that Exemption 7(E) covers only a subset of “techniques or

procedures,” we therefore reject such a reading of the statute. And in

any event, we do not think that any of those four adjectives materially

aids our analysis of what falls within the scope of “techniques or

procedures.” 8 The key issue in determining whether redacted

material contains “techniques or procedures” under Exemption 7(E)

is whether disclosure of that material would reveal particulars about

the way in which an agency enforces the law and the circumstances

that will prompt it to act. In Lowenstein Project, we explained, “if [an]

agency informs tax investigators that cash-based business are more

8Indeed, we have used the word “technical” parenthetically in describing the definition of “technique.” Lowenstein Project,

, and so it would be redundant to speak of a “technical technique.” Moreover, “technical” in this context simply means “of or relating to a particular subject.” Webster’s Third New International Dictionary (1986).

38 likely to commit tax evasion than other businesses, and therefore

should be audited with particular care, focusing on such targets

constitutes a ‘technique or procedure’ for investigating tax evasion.”

. The questions that USCIS instructs its employees to

ask visa applicants to detect ties to terrorism are more closely linked

to the specific methods employed by government actors than an

agency’s generic directive to investigate cash-based businesses. We

hold that the list of TRIG questions employed to effectuate law

enforcement purposes—to identify potential terrorists and keep them

from entering the United States—falls squarely within the scope of

the statutory phrase “techniques or procedures.”

Even if the TRIG questions were “guidelines” rather than

“techniques or procedures” of law enforcement, Exemption 7(E)

would apply because USCIS has established that disclosing the TRIG

questions would reasonably risk circumvention of the law. As

explained earlier, disclosing in advance the specific questions that

39 agents may use to suss out and evaluate connections to terrorism

would help those with terrorist ties to tailor their answers to avoid

detection. See, e.g., Heartland Alliance Nat’l Immigrant Justice Ctr. v.

Dep’t of Homeland Sec.,

(7th Cir. 2016) (upholding the

application of Exemption 7(E) to a list of lower-level terrorist

organizations, the disclosure of which would allow applicants for

immigration benefits to conceal ties to those organizations); Ibrahim v.

Dep’t of State,

(D.D.C. 2018) (upholding the

application of Exemption 7(E) to “USCIS’s Refugee Application

Assessment” because “[t]he lines of questions recorded in the

Assessment highlight circumstances that would have raised national

security and public safety concerns,” and its disclosure “could

reasonably be expected to risk circumvention of the law by enabling

applicants for refugee status to plan strategic but inaccurate

answers”).

40 Finally, Knight asserts, as the district court held, that even if the

questions could be considered “techniques or procedures” for

purposes of Exemption 7(E), they are no longer exempt because they

have been publicly disclosed. See Inner City Press/Cmty. on the Move v.

Bd. of Governors of the Fed. Rsrv. Sys.,

(2d Cir. 2006).

The burden of establishing prior public disclosure is on the requester.

Knight asserts that it has carried its “burden of production” by

pointing out that the TRIG questions “become known to applicants

when the questions are asked in interviews or mailed to them in

Requests for Evidence.” Knight Br. at 45. 9 But as we have explained,

“[t]he Supreme Court has limited the public domain exception to

9Knight invokes the district court’s reasoning in ACLU v. DHS, asserting that when an agency has a “practice of asking the questions at issue,” it incurs an additional burden to “justify its assertion that . . . [the questions are] not already known to the public.” Knight Br. at 46 (quoting ACLU v. DHS,

). We reject any such rule. A FOIA requester bears the burden of production on the question of whether material is “publicly available.” Inner City Press,

. As we explain above, the mere fact that an agency asks certain questions to certain individuals does not satisfy the requester’s burden of production, because it does not satisfy the threshold showing that such questions are available to the general public.

41 information that is ‘freely available.’” Inner City Press,

(quoting U.S. Dep't of Just. v. Reps. Comm. for Freedom of Press,

(1989)). Thus, to meet this prior-disclosure burden, “the

requesting party ‘must . . . point[ ] to specific information in the public

domain that appears to duplicate that being withheld.’”

at 249

(quoting Afshar v. U.S. Dep’t of State,

(D.C. Cir.

1983) (alterations in original)). In the FOIA context, information is in

the public domain if it is generally available to the public at large, not

simply if it happens to be known by select members of the public. See

U.S. Dep't of Just. v. Reps. Comm. for Freedom of Press,

(1989) (distinguishing between information “restricted to . . . a

particular person or group of class of persons” and information

“freely available to the public”). The latter is the case here. Perhaps

an enterprising researcher could identify a pool of visa applicants,

collect information about what they were asked, and then compile a

list of common questions they faced. Though doubtful, let us further

42 assume that our imaginary researcher would also be able to intuit

which questions had been posed to ferret out possible terrorists and

therefore must be on the TRIG list. Even if all of this might

conceivably be achieved, the necessity of the reconstruction exercise

itself demonstrates that the information in question is not in the

public domain. See, e.g., Davis v. U.S. Dep’t of Just.,

(D.C. Cir. 1992) (holding FOIA requester failed to show public

disclosure by pointing to newspaper accounts establishing that

government played tape recordings at trial; rather, requester had

“burden of showing that there is a permanent public record of the

exact portions” sought to be disclosed); Bishop v. U.S. Dep’t of

Homeland Sec.,

(S.D.N.Y. 2014) (“[C]ourts have

acknowledged that Exemption 7(E) applies even when the identity of

the techniques has been disclosed, but the manner and circumstances

of the techniques are not generally known, or the disclosure of

additional details could reduce their effectiveness.” (internal

43 quotation marks omitted)); Barouch v. United States Dep’t of Just.,

, 30 n.13 (D.D.C. 2015) (upholding the application of

Exemption 7(E) to material showing the “questioning techniques

used by ATF agents and local law enforcement agents” because

“disclosure would hinder future use of these tactics” (internal

quotation marks omitted)). Put another way, the possibility that a

savvy law-evader might be able to infer the substance of some

withheld documents by carefully observing an agency’s actions does

not remove those documents from the ambit of Exemption 7(E). 10

For these reasons, we conclude that USCIS properly withheld

the TRIG Questions under Exemption 7(E). Those questions

constitute techniques or procedures of law enforcement. We

therefore reverse the September 23, 2019, ruling of the district court

10That is particularly so where, as here, the withheld material does not include a single script that a motivated observer could discern. The agency instructs its agents to use the TRIG questions dynamically: they may be scrambled, added, removed, or rephrased in response to the specific situation that agents face.

44 to the extent that it required USCIS to disclose material reflecting the

TRIG Questions.

II. Documents Withheld under FOIA Exemption 5

ICE withheld under Exemption 5 a memo titled “ICE Ability to

Use 212(a)(3)(C) Foreign Policy Charge.” The agency emphasizes that

the memo was a draft, that it was not binding, and that it reflected the

views of the individual author rather than the agency. ICE argues

that the district court erred in holding that the ICE memo was not

subject to the deliberative process privilege through Exemption 5.

That exemption excludes from FOIA’s disclosure requirement “inter-

agency or intra-agency memorandums or letters that would not be

available by law to a party other than an agency in litigation with the

agency.” 5. U.S.C. § 552(b)(5). “By this language, Congress intended

to incorporate into the FOIA all the normal civil discovery privileges,”

including the deliberative process privilege. Hopkins v. U.S. Dep't of

Hous. & Urb. Dev.,

, 84 (2d Cir. 1991). A record is protected

45 by the deliberative process privilege if it is (1) “predecisional, that is,

prepared in order to assist an agency decisionmaker in arriving at his

decision”; and (2) “deliberative, that is, actually related to the process

by which policies are formulated.” Id. (cleaned up). “[T]he

deliberative process privilege protects only those records that bear on

the formulation or exercise of policy-oriented judgment.” Nat. Res.

Def. Council v. U.S. E.P.A.,

, 184–85 (2d Cir. 2021) (internal

quotation marks omitted). But the agency need not point to a specific

decision that it was facing for which the document was prepared—it

is enough that the record is connected to “a specific decisionmaking

process.”

.

It appears that ICE’s appeal with respect to the ICE memo

might be moot, but the record is unclear. Although the district court

concluded that the ICE memo did not fall within Exemption 5 because

it was not pre-decisional, Knight II, 407 F. Supp. 3d at 345, it did not

order immediate disclosure of the memo. Rather, it directed ICE to

46 “re-assess its applied exemptions” using the district court’s opinion

as a guide “and disclose all responsive non-exempt materials that can

reasonably be segregated from exempt materials.” Id. at 355. The

record does not reveal whether or when ICE conducted the ordered

segregability analysis. At oral argument, counsel for ICE stated that

the agency had conducted a review and determined that no material

was reasonably segregable, but it seemed that counsel might have

been referring to a different memo that the district court had

addressed in the same opinion. 11 While Knight now asserts that “ICE

failed to disclose reasonably segregable portions of the Foreign Policy

Provision Memo,” Knight Br. at 57, it did not raise that failure in the

district court, nor has it filed its own cross-appeal.

11Counsel explained that the district court ordered ICE to disclose anything in the memo that was “working law. ICE did that. ICE went through, did another review, and informed the plaintiffs that nothing in [the memo] contains working law.” Oral Argument at 36:59–37:09, Knight First Amend. Inst. at Columbia Univ. v. United States Citizenship & Immigr. Servs., No. 20-3837-cv (2d. Cir. Jan. 6, 2022). But the district court discussed “working law” in the context of a different ICE memo—the so-called “Extreme Vetting Memo” that is not at issue in this appeal. See Knight II, 407 F. Supp. 3d at 344.

47 Because we cannot determine whether ICE complied with the

district court’s direction to conduct a segregability analysis, we

remand to the district court to allow the parties to develop the record.

On remand, if it has not already done so, ICE must conduct a

segregability analysis and communicate its position with respect to

the ICE memo to Knight. If ICE determines that it is not obligated to

produce any further portions of the ICE memo, Knight is free to

challenge that determination in the district court. The district court

should consider any such renewed dispute in light of our decision

expounding upon the deliberative process privilege in National

Resources Defense Council,

, which we decided only after

the district court issued its prior ruling. Should the court have doubts

about the application of Exemption 5 to the ICE memo, it may also

conduct an in camera review. And, of course, either party remains free

to appeal anew in the face of an adverse ruling.

48 CONCLUSION

In sum, we hold as follows:

(1) DOS properly withheld portions of 9 FAM under FOIA

Exemption 7(E) because it established that the material was

compiled for law enforcement purposes and that disclosure

would reasonably risk circumvention of the law.

(2) An agency need not show that the techniques or procedures

of law enforcement that it seeks to protect from disclosure

under FOIA Exemption 7(E) are special or technical before

the Exemption applies, and material does not fall outside

Exemption 7(E) solely because some targets of investigation

could infer some of the contents of the material.

Accordingly, USCIS properly withheld the TRIG questions

under FOIA Exemption 7(E).

(3) It is not clear from the record whether ICE has already

complied with the segregability analysis ordered by the

49 district court with respect to the memo withheld pursuant

to Exemption 5, and whether ICE’s appeal in that respect is

now moot.

We therefore REVERSE the orders of the district court to the

extent that they required disclosure of the 9 FAM materials and the

TRIG questions. We REMAND to the district court to allow the

parties to more fully develop the record with respect to the ICE

memo.

50