The Office of Civil Rights and Civil Liberties (CRCL) within the Department of Homeland Security (DHS) is responsible for reviewing and assessing civil rights and civil liberties abuses by DHS employees and officials and investigating possible abuses of civil rights and civil liberties, among other duties. In 2015, CRCL noted in its annual report to Congress that it had sent a “super-recommendations memo” to Immigration and Customs Enforcement (ICE) “formally notifying [ICE] of [CRCL’s] long-standing and continuing concerns” about a detention facility in Alabama. The memo recommended that ICE either enact reforms to bring the facility into compliance with national standards or cease use of the facility.
In September 2016, several civil rights and immigrant rights groups sent a FOIA request to CRCL requesting that CRCL disclose the 2015 super-recommendations memo. CRCL responded by acknowledging the existence of responsive records but withholding them in full under exemption 5. Following CRCL’s failure to change its position following an administrative appeal, Public Citizen Litigation Group filed a lawsuit on behalf of five of the requesters—Adelante Alabama Worker Center, Detention Watch Network, Greater Birmingham Ministries, Immigrant Defense Project, and Southerners On New Ground—challenging CRCL’s and DHS’s withholding of the memo.
On February 9, 2018, DHS produced the “super-recommendations memo” along with several attachments, which contained significant redactions throughout. The parties both moved for summary judgment as to DHS’s withholding of (1) certain information withheld under exemption 5 and (2) the names and professional backgrounds of subject-matter experts hired by DHS under exemption 6.
On March 26, 2019, the court granted in part and denied in part summary judgment to the plaintiffs. The court held that DHS had not carried its burden as to the challenged withholdings under exemption5. The court ordered DHS to re-review the records, disclose factual information and standards/methodologies of the expert reports that were not subject not exemption 5, and produce more specific explanations for any continued withholdings of factual information and standards/methodologies. The court also ordered DHS to submit unredacted records to the court for in camera review of a portion of them. Finally, the court held DHS could not withhold the names and professional backgrounds of the experts under exemption 6 and ordered DHS to disclose this information.