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Media Alerts - American Immigration Lawyers v. Exec. Office for Immigration Review
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July 29, 2016
  American Immigration Lawyers v. Exec. Office for Immigration Review
Headline: D.C. Circuit finds 1) FOIA's privacy protections do not support an across-the-board approach to removing names from disclosed records; 2) FOIA does not permit an agency to redact "non-responsive" information from otherwise responsive records

Area of Law: Freedom of Information Act

Issue(s) Presented:
Whether the Executive Office for Immigration Review may categorically redact the names of immigration judges from records of misconduct complaints before releasing those complaints pursuant to a FOIA request; whether FOIA permits redacting ostensibly non-responsive information from a record otherwise deemed responsive.

Brief Summary: The American Immigration Lawyers Association (AILA) submitted a request to the Department of Justice under the Freedom of Information Act (FOIA) seeking disclosure of records related to complaints against immigration judges. After hearing no response, AILA filed suit in the United States District Court for the District of Columbia. Over the next year, the government disclosed thousands of records but redacted judges' names on the basis that their privacy interests outweighed the public's interest in disclosure under FOIA Exemption 6. The government also selectively redacted information that it deemed non-responsive from records it had otherwise disclosed without citing to any of FOIA's enumerated exemptions. AILA challenged both redactions in court and additionally argued that FOIA's affirmative disclosure obligation required publication of complaint resolution decisions. The district court granted summary judgment to the government, and AILA appealed. The United States Court of Appeals for the District of Columbia Circuit reversed in part and affirmed in part.

The appeals court began with the proposition that FOIA's exemptions are exclusive and must be narrowly construed, with the burden on the agency to establish that requested documents are exempt from disclosure. Examining the government's Exemption 6 argument, the court rejected the district court's categorical approach. The court agreed that all immigration judges have a privacy interest in their names but found that there was no necessary or uniform answer to the question whether the incremental value of disclosing an immigration judge's name in the context of a particular situation outweighed the judge's privacy interest. Rather, the court concluded that the interests on either side of the balancing test would differ depending on context and remanded to the district court so that the government could make a more particularized showing.

Turning to the government's selective redactions, the court observed that the question whether the government could redact non-responsive yet non-exempt material from a record that otherwise responded to a valid request was one of first impression. The court noted that the only FOIA provision allowing the government to withhold responsive records is section 552(b), which sets forth nine statutory exemptions and explicitly allows for selective redaction of exempt information within records provided. The court determined that the redaction of non-exempt information within responsive records found "no home" in FOIA's scheme. The court noted that neither party had addressed the antecedent question of what constitutes a "record" but held that, once an agency itself defines a document or collection of material as a responsive "record," the only information it may redact from the record is that falling within an express statutory exemption.

Finally, the court considered the district court's rejection of AILA's argument that resolutions of complaints against immigration judges constituted "final opinions" made "in the adjudication of cases," which are subject to FOIA's affirmative disclosure requirement. The court concluded that complaint resolutions do not result from an adjudicatory process or reflect a final decision as to the rights of outside parties. The court additionally noted that the affirmative disclosure requirement mandates disclosure only of decisions making law or policy. Complaint resolution decisions, in contrast, set no precedent and have no binding force on the agency or any party other than the individual immigration judge subject to a particular complaint. As such, the court affirmed on this issue.

For the full text of the opinion, please see

Panel: Henderson, Srinivasan, Millett

Argument Date: February 16, 2016

Date of Issued Opinion: July 29, 2016

Docket Number: 15-5201

Decided: Reversed in part, affirmed in part.

Counsel: Julie A. Murray and Allison M. Zieve for appellant.

Javier M. Guzman, R. Craig Lawrence, and Jane M. Lyons for appellee.

Author of Opinion: Srinivasan

Case Alert Author: Elizabeth Beske

Case Alert Circuit Supervisor: Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/29/2016 03:22 PM     DC Circuit  

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