Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hamama v. Adducci

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

August 9, 2019

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

          OPINION & ORDER RE OUTSTANDING SEALING MATTERS

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the parties' February 14, 2019 joint statement of issues (Dkt. 529). The Court addressed all of the issues raised in the joint statement in its March 12, 2019 Order (Dkt. 532), with the exception of issues related to provisionally sealed items. Because the Government was still reviewing the provisionally sealed documents, the Court ordered a supplemental Government brief. The Government filed its supplemental brief on March 15, 2019 (Dkt. 534). The Court recently ordered the Government to support its position further on sealing (Dkt. 580), which it did on August 1, 2019 (Dkt. 582).

         In the joint statement, Petitioners identified a number of provisionally sealed items that they believe should be unsealed. They identified Petitioners' memorandum regarding sanctions for discovery violations (Dkt. 454), Petitioners' opposition to the Government's motion for an extension of the discovery deadline and request for expedited reply briefing (Dkt. 363), and Petitioners' statement regarding consolidation of preliminary injunction hearing with a trial on the merits (Dkt. 439). With respect to the Petitioners' statement regarding consolidation of preliminary injunction hearing (Dkt. 439), the Government does not object to the matter being made public. The Court will address the other two items in turn.

         I. DISCUSSION

         A. Petitioners' memorandum regarding sanctions (Dkt. 454)

         Petitioners' memorandum regarding sanctions includes two exhibits that have been provisionally sealed. See Exs. 3 & 4 to memorandum regarding sanctions (Dkt. 454-4, 454-5). The Government argues that because the Court dismissed Petitioners' motion without prejudice (Dkt. 532), this matter is no longer ripe for consideration. Gov't Supp. Br. at 1-2. This argument is a nonstarter. The exhibits are part of a court record. The only question is whether there is a basis to keep these documents from the public domain.

         Alternatively, however, the Government argues that the exhibits should remain sealed for the reasons set for in its opposition to the motion to file the documents publicly (Dkt. 488). The Court will address each document in turn.

         Exhibit 3 (Dkt. 454-4) is comprised of email correspondence among State Department and ICE officials regarding the status of obtaining travel documents from Iraq. The Government argues that these communications should remain sealed for three reasons. First, it argues that the emails are protected by the deliberative process privilege. Gov't Opp'n at 7-8. Second, the Government argues that disclosure of these emails could put Iraqi officials in danger and jeopardize diplomatic relations with Iraq. Gov't Opp'n at 8-9. Finally, the Government argues, without any explanation, that the law enforcement privilege applies. Id. at 10.

         In support of its argument that the deliberative process privilege applies to Exhibit 3, the Government filed the declaration of Robert Waller, Director of Iraq Affairs in the Near Eastern Affairs Bureau. According to Waller, the deliberative process privilege applies because these communications contain “opinions, impressions, and proposals [that] represent part of an ongoing policy-making process, and do not reflect a final decision that would be made by a senior State Department official.” Waller Decl., Ex A to Gov't Opp'n, ¶ 9 (Dkt. 488-1). The Court disagrees with Waller's characterization of the email thread and that the deliberative process privilege applies.

         “The deliberative process privilege protects from discovery ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'” E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621 F.Supp.2d 603, 606 (W.D. Tenn. 2009) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). “The primary purpose served by the deliberative process privilege is to encourage candid communications between subordinates and superiors.” Schell v. U.S. Dep't of Health & Human Servs., 843 F.2d 933, 939 (6th Cir. 1988). To fall within the privilege, the information must be both (i) pre-decisional and (ii) deliberative. Id. at 940.

         “A document is predecisional when it is ‘received by the decisionmaker on the subject of the decision prior to the time the decision is made.'” Id. (quoting Sears, 421 U.S. at 151). However, the privilege does not turn “on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared. Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions.” Sears, 421 U.S. at 153 n.18.

         A document is deliberative when it “reflects the give-and-take of the consultative process, ” meaning it “covers recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Id. (internal citation and quotations omitted). It is well-settled that the deliberative process privilege “protects internal communications of a governmental agency when they are deliberative in nature, but not when they are purely factual.” Burlington, 621 F.Supp.2d at 606 (citing Sears, 421 U.S. at 149). “Factual materials are generally not privileged unless they are inextricably intertwined with policy-making processes.” Id. (quoting Trentadue v. Integrity Comm., 501 F.3d 1215, 1227 (10th Cir. 2007)). “[P]urely factual, investigative matters that are severable without compromising the private remainder of the documents do not enjoy the protection of the exemption.” Norwood v. F.A.A., 993 F.2d 570, 577 (6th Cir. 1993) (citations and quotations omitted).

         Courts are to apply a “flexible, commonsense approach to factual/deliberative classifications” and “must be careful not to become victims of their own semantics.” Trentadue v. Integrity Comm., 501 F.3d 1215, 1227 (10th Cir. 2007). “In some circumstances . . . the disclosure of even purely factual material may so expose the deliberative process within an agency that it must be deemed exempted.” Id. “[T]he Ninth Circuit has adopted a ‘process-oriented' or ‘functional' test that exempts ‘[f]actual materials . . . to the extent that they reveal the mental processes of decisionmakers.'” Id. (quoting Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir. 1988)). By contrast, the Eleventh Circuit has explicitly rejected that approach, holding instead that “[t]he fact/opinion distinction continues to be an efficient and workable standard for separating out what is, and what is not, deliberative.” Id. at 1228 (quoting Fla. House of Representatives v. U.S. Dep't of Commerce, 961 F.2d 941, 949 (11th Cir. 1992)).

         Applying the above principles, the Court finds that the information contained in Exhibit 3 does not fall within the deliberative process privilege. The email communications in Exhibit 3 do not stray into the realm of “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Sears, 421 U.S. at 149. The emails simply update the State Department and ICE officials on the current state of affairs with respect to obtaining travel documents from Iraq. These are not internal emails deliberating on how best to obtain travel documents from Iraq. If anything, the communications reflect that it is out of the email recipients' hands for the time being. Indeed, at the end of the email thread, after being apprised of the current situation, John Schultz says that he hopes that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.