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Hamama v. Adducci

United States District Court, E.D. Michigan, Southern Division

May 31, 2018

USAMA J. HAMAMA, et al., Petitioners,
v.
REBECCA ADDUCCI, et al., Respondents.

          ORDER REGARDING RESPONDENTS' PRIVILEGE MEMORANDUM (Dkt. 264)

          HON. MARK A. GOLDSMITH JUDGE

         In the Court's March 13, 2018 Order, the Court ordered the Government to file a memorandum supporting its privilege assertions and other grounds for withholding information responsive to Petitioners' interrogatories. See 3/13/2018 Order at 9 (Dkt. 254). The Government has filed its privilege memorandum (Dkt. 264); Petitioners filed their response to the memorandum (Dkt. 269), to which the Government filed a reply (Dkt. 277). Petitioners have since filed a supplemental memorandum (Dkt. 293). For the reasons stated below, the Court overrules the Government's assertion of the law enforcement privilege in response to Petitioners' Interrogatory 12.

         I. ANALYSIS

         In its privilege memorandum, the Government states that the Department of Homeland Security (“DHS”), and its Immigration and Customs Enforcement division (“ICE”), assert the law enforcement privilege with respect to a portion of their responses to Interrogatory 12. The pertinent portion of this interrogatory asks to identify “the name, title, and department of the government (for both Iraq and the United States) of each individual negotiating the Iraqi Agreement, including the ‘ongoing diplomatic negotiations' referenced in the declaration of Michael V. Bernacke . . . identification of the individuals authorized to enter into any agreement reached by the governments regarding the repatriation of Iraqi Nationals, and the date each individual engaged in the ‘ongoing diplomatic negotiations.'” The Government provides the declaration of an ICE officer and a DHS undersecretary in support of the privilege assertion. They assert that disclosure of these negotiators would chill future negotiations and expose the negotiators to possible harassment or coercive questioning. In response, Petitioners argue that the requested information does not fall within the scope of the law enforcement privilege, and that even if it does, a balancing of the relevant factors tips in favor of disclosure.

         “The federal law enforcement privilege is ‘a qualified privilege designed to prevent disclosure of information that would be contrary to the public interest in the effective functioning of law enforcement.'” In re Packaged Ice Antitrust Litig., No. 08-01952, 2011 WL 1790189, at *6 (E.D. Mich. May 10, 2011) (quoting In re Micron Tech., Inc. Sec. Litig., 264 F.R.D. 7, 10 (D.D.C. 2010)). “The purpose of the law enforcement privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation.” MacNamara v. City of New York, 249 F.R.D. 70, 78 (S.D.N.Y. 2008) (internal citations and quotations omitted).

         Three requirements must be met by the Government to prevail on its claim of privilege: “(1) there must be a formal claim of privilege by the head of the department having control over the requested information; (2) assertion of the privilege must be based on actual personal consideration by that official; and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege.” In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988).

         There is no dispute that the heads of ICE and DHS have invoked the privilege after personal consideration of the issue. Thus, the Government's claim turns on the third requirement: whether the information sought - the identities of certain undisclosed individuals involved in the negotiation of the Iraqi agreement - falls within the scope of the privilege.

         The Government contends that “the disclosure of the withheld information could cause risk to national security and impact Defendants' ability to carry out the agency missions or operations for several reasons.” Gov. Mem. at 7-8. These reasons include the safety of the negotiating officers, ICE's ability to engage with foreign governments to repatriate aliens, and the potential chilling effect on future negotiations. Petitioners argue that the privilege is inapplicable, because the Government has not demonstrated that any harm will befall the ICE or DHS agents if their identities are revealed; they note that the Government has already disclosed others involved in the negotiations with Iraq. They also argue that the type of information sought, the names of those involved in a diplomatic negotiation, is not the type of information envisioned by the privilege, and that disclosure of the information will not harm future collaborative relationships.

         The Court agrees with Petitioners. As noted above, the law enforcement privilege is meant to protect law enforcement techniques; confidentiality of sources, witnesses and law enforcement personnel; the privacy of individuals; and otherwise prevent interference with an investigation. MacNamara, 249 F.R.D. at 78. Petitioners are not asking for techniques or procedures, the names of confidential sources, or seeking to interfere in an investigation. Nor would answering Interrogatory 12 touch on any of that.

         While the Government argues that ICE agents involved in the negotiations could be subject to harassment if their identities are revealed, this is belied by the disclosure of other ICE and DHS officials who have participated in the crafting of the purported Iraqi agreement, and the disclosure of similar officials in other recent litigation. In this case alone, the Government has identified, among others, Michael Bernacke, John Schultz, Jr., and Elizabeth Estrada, three senior ICE officials whose responsibilities include obtaining travel documents from foreign countries and coordinating repatriation with those countries. See Table of ICE Officials, Ex. 9 to Pet. Resp. (Dkt. 269-10). In another recent case, the Government has identified Julius Clinton, an ICE official who coordinates with foreign governments to obtain travel documents. Id. No. claims of harassment of any of those individuals have been reported.

         The Government also claims that disclosure would impede ICE's repatriation efforts, and chill future negotiations. It contends that “[i]n general, courts have been deferential to the need for protection of sensitive information, including with foreign governments.” Gov. Reply at 7. However, it cites no authority where the identity of those involved in diplomatic negotiations was held to be protected by law enforcement privilege; indeed, it does not cite any cases involving the law enforcement privilege and foreign policy. It instead relies on conclusory assertions that “the disclosure of the withheld information could cause risk to national security and impact Defendants' ability to carry out the agency missions.” The Government's burden “must be discharged by presenting those facts that are the essential elements of the privileged relationship and not by mere conclusory or ipse dixit assertions.” MacNamara, 249 F.R.D. at 85 (internal citation and quotations omitted). As a result, the identity of those involved in the negotiation of the Iraqi agreement does not fall within the scope of the law enforcement privilege.

         Even if this information was covered by the law enforcement privilege, the privilege is qualified. See In re Sealed Case, 856 F.2d at 272. “The public interest in nondisclosure must be balanced against the need of a particular litigant for access to the privileged information.” Id. In order to balance the needs of the Government against a particular litigant, courts in this Circuit have applied the factors set forth in Tuite v. Henry, 181 F.R.D. 175, 177 (D.D.C. 1998). See In re Packaged Ice Antitrust Litig., 2011 WL 1790189 at *6.[1] The factors are a non-exhaustive list of issues for courts to consider when determining whether to order disclosure after the law enforcement privilege has been properly asserted:

(1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is nonfrivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff's case.

         The applicable Tuite factors weigh in favor of disclosure.[2] In its memorandum, the only Tuite factor addressed by the Government is the second factor - the impact upon those who have given information of having their identities disclosed. As discussed above, the impact of disclosing the names of the ICE and Iraqi officials in question will be minimal, certainly not enough to chill future negotiations. That ICE officials engage with foreign governments, and vice versa, in order to repatriate aliens is well-known, and has been acknowledged by the Government in this case and others. The Government's argument is further undermined by the revelation that, in response to a Freedom of Information Act request by amici Chaldean ...


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