TERESA J. JAMES, Magistrate Judge.
This is a denaturalization case brought by Plaintiff United States of America ("the Government") against naturalized citizen Defendant Afaq Malik ("Malik"). This matter is pending before the Court on Malik's Motion to Compel Discovery Responses (ECF No. 26). Malik requests an order under Fed. R. Civ. P. 37 compelling the Government to produce two documents, a Statement of Findings and a Fraud Referral Sheet, created during its investigation of whether to institute denaturalization proceedings against Malik, and an unredacted version of Malik's I-485 application Processing Sheet. The Government opposes the motion, arguing that the documents sought by Malik are not relevant and are also protected from disclosure under the deliberative process privilege or law enforcement privilege. As explained below, the Court finds that the documents are protected from disclosure under the deliberative process privilege and the redactions under the law enforcement privilege, and Malik has not made a sufficient showing of need for the documents and redacted information to overcome the privileges. The motion is denied.
On November 21, 2000, Malik filed his I-485 application seeking to become a lawful permanent resident based upon his marriage to Venita McIntosh ("McIntosh"), a United States citizen, on October 23, 2000. Malik filed his Application for Naturalization on April 5, 2004. His application was approved, and he became a naturalized United States citizen on January 15, 2009.
The Government filed its Complaint to Revoke Naturalization (ECF No. 1) of Malik on May 28, 2015.
In addition, the Government alleges that Malik concealed the existence of his first wife, Fatima, and their two children. The Government further contends that Malik willfully misrepresented these material facts during the legal permanent residency application process, and therefore Malik was not eligible for admission as a United States citizen. Finally, the Government alleges Malik lacked the required good moral character to become a naturalized citizen because he committed bigamy and practiced polygamy when he allegedly remarried his first wife while still married to his U.S.-citizen spouse.
During the course of discovery in this case, the Government produced immigration records and related documents that it claims support the allegations in the Complaint. On January 8, 2016, the Government served its Response to Malik's First Interrogatories and Requests for Production of Documents and ESI,
After correspondence and discussions of counsel, the Government eliminated and reduced some redactions of the documents produced and provided an updated privilege log. However, the Government continued to object to production of the following two documents: (1) May 16, 2013 Statement of Findings, consisting of nine pages ("the Statement of Findings"); (2) May 2, 2013 Fraud Referral Sheet, consisting of three pages ("the Fraud Referral Sheet"). The Government also objected to producing an unredacted version of the one-page I-485 Processing Sheet. The Government argued that that these documents were not relevant or were of such marginal relevance to this case that the harm of disclosure would outweigh any potential relevance. The Government also asserted the deliberative process privilege as to the Statement of Findings and the Fraud Referral Sheet, and claimed that its redactions to the I-485 Processing Sheet were protected by the law enforcement privilege.
Malik filed his Motion on February 10, 2016, requesting an order compelling the Government to produce the Statement of Findings and Fraud Referral Sheet, and an unredacted version of the I-485 Processing Sheet. On May 23, 2016, the Court ordered the Government to submit unredacted copies of the three documents for in camera review.
The Government has asserted the deliberative process privilege as a basis for withholding the Statement of Findings and Fraud Referral Sheet. It claims these documents relate to the process used by United States Citizenship and Immigration Services ("USCIS") to determine whether to bring this denaturalization action against Malik for fraud, prior to the consummation of that decision. It also claims that the authors of the documents are not the final decision makers, but are part of the agency's deliberative process in making its final decision to institute denaturalization proceedings. As such, the Government contends these pre-decisional and deliberative documents qualify for protection from disclosure under the deliberative process privilege. The Government has provided a privilege log asserting the privilege with respect to these two documents. It further argues that Malik has not shown that any waiver or exception to the privilege applies.
Malik argues the Court should reject the Government's attempt to invoke the deliberative process privilege to shield the Statement of Findings and Fraud Referral Sheet from production because the Government has not met its burden to prove the privilege applies, has not properly invoked the privilege, and has waived the privilege by placing at issue its own knowledge of the facts. Malik further argues that even if the qualified privilege applies, the Court should find that Malik has demonstrated a need for the documents.
The deliberative process privilege
A document is pre-decisional if it is "prepared in order to assist an agency decisionmaker in arriving at his decision."
A pre-decisional document also has to be "deliberative," meaning it is a part of the agency's deliberative process. A document is considered a part of the deliberative process if it relates to government decision-making and its disclosure to the public "would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions."
While non-factual materials that express opinions or recommendations are clearly protected under the deliberative process privilege,
In support of its assertion of the deliberative process privilege as a basis for withholding the Statement of Findings, the Government has submitted the Declaration of David Douglas ("Douglas"), who is the Director of USCIS for District 15. In his Declaration, Douglas states that the nine-page Statement of Findings is an internal document prepared by the Fraud Detection and National Security Directorate ("FDNS") at the request of, and to assist, a USCIS decision maker in making an overall adjudication of Malik's immigrant petitions and determination of the issue of submission for denaturalization litigation.
Malik argues that the Statement of Findings is not deliberative and that this is shown by the Government's own privilege log, which indicates that the document was not actually addressed to anyone.
Malik argues that even if the Statement of Findings contains low-level employees' opinions about whether to bring a denaturalization lawsuit in addition to reciting the facts, the Tenth Circuit Trentadue decision dictates that the appropriate action would be to redact the opinion portions and produce the factual summary. The Court agrees with Malik that to the extent the Statement of Findings consists only of compiled factual material or purely factual material severable from its context, that information is not protected by the deliberative process privilege.
In further support of its position that even the purely factual material within the Statement of Findings is selective and deliberate and therefore should be protected by the deliberative process privilege, the Government cites to the 2013 Southern District of New York case Assadi v. U.S. Citizenship and Immigration Services.
In addition to the Assadi case, other courts have found USCIS reports containing the non-final-decision-making author's thoughts or impressions on agency action qualify for the deliberative process privilege.
The Court finds that the Statement of Findings is an internal agency document that was prepared prior to the final decision on whether to institute denaturalization litigation against Malik. It was compiled by the FDNS investigator, who was not the final decision maker, for the purpose of assisting DHS legal counsel and USCIS in arriving at the decision whether to institute denaturalization proceedings against Malik. The Court concludes the Government has established that the Statement of Findings is a pre-decisional document for purposes of the deliberative process privilege.
The Government has also shown the Statement of Findings was part of the USCIS's deliberative process whether to institute denaturalization proceedings against Malik. The Statement of Findings prepared by the FDNS is submitted to the DHS legal counsel as part of the FDNS officer's recommendation for submission for denaturalization litigation. The Government has shown that release of this information would likely undermine a key tool in preventing and addressing immigration fraud, including marriage fraud. Fear of public disclosure of the Statement of Findings could have a chilling effect on the amount and type of information that FDNS initially includes in its reports to USCIS decision makers.
Like the agency documents at issue in Assadi and Abtew, the Statement of Findings at issue here is predominantly an evaluative document, including the FDNS investigator's opinions and recommendations to DHS legal. The Government has met its burden to show the Statement of Findings in its entirety is pre-decisional and part of USCIS's deliberative process for determining whether to institute denaturalization proceedings against Malik. As in Assadi, the factual information in the Statement of Findings is inextricably intertwined with the deliberative or adjudicative process. The Court's thorough in camera review of the Statement of Findings further informs the Court's ruling and leaves the Court with no doubt that the Statement of Findings should be and is protected in its entirety by the deliberative process privilege.
The Government also invokes the deliberate process privilege to preclude production of the Fraud Referral Sheet. It claims that, like the Statement of Findings, the Fraud Referral Sheet is a deliberative, pre-decisional document addressing potential fraud, created for the purpose of investigating whether to bring this denaturalization action. According to the Government, the Fraud Referral Sheet documents the impressions of a USCIS adjudicator communicating a request for the FDNS to institute an administrative investigation to assist USCIS adjudicators in making decisions on immigration applications. The Fraud Referral Sheet must provide enough information for FDNS investigators to make an informed decision regarding commencement of investigation of suspected fraud matters, and include any record of suspected fraud or any other grounds of inadmissibility or removability that have been identified by the adjudicator.
The Court finds that the Government has met its burden to show the Fraud Referral Sheet was pre-decisional; it was prepared to instigate the administrative investigation of possible fraud and to assist an agency decision-maker in determining whether to institute the instant denaturalization proceedings against Malik. Director Douglas explains in his Declaration that the Fraud Referral Sheet documents the impressions of a USCIS adjudicator communicating a request for the FDNS to institute an administrative investigation to assist USCIS adjudicators in making important decisions on immigration applications. It was compiled prior to any final decision concerning the appropriateness of denaturalization litigation and, as such, was pre-decisional.
In addition to being a pre-decisional document, the Government must also show that the Fraud Referral Sheet is deliberative. The Government asserts that the Fraud Referral Sheet is deliberative because it contains the views of a particular adjudicator in a dialogue with FDNS investigators on which cases should be pursued for investigation of suspected fraud. This dialogue must be protected to preserve candor in the communication of adjudicators with FDNS officials. The Court agrees that the Government has established that the Fraud Referral Sheet is part of the agency's deliberative process for determining whether to institute denaturalization proceedings against Malik.
The Government further argues that the factual information included in the Fraud Referral Sheet is also protected because it is information that the adjudicator deemed important for FDNS consideration during the investigation process. Thus, disclosing or attempting to sever that material would itself demonstrate the process by which fraud is investigated, prioritized, and targeted for enforcement. Release of this document would inhibit the ability of USCIS, and chill the ability of immigration adjudicators and FDNS investigators to provide information required to make an informed decision on potential future actions, such as fraud investigation or enforcement. Fear of public disclosure of the materials set forth in these discussions would limit the amount and type of information included by USCIS adjudicators.
Like the Statement of Findings, the Court concludes that the Government has shown the factual information included in the Fraud Referral Sheet should be exempted as its disclosure is inextricably intertwined with deliberative materials and would reveal part of USCIS's deliberative process. The Court's in camera review of the Fraud Referral Sheet confirms that the factual information included is intertwined with and not severable from the investigator's mental impressions, evaluations, and opinions. Moreover, allowing the disclosure of factual information would reveal what information the investigator decided was significant enough for inclusion in the Fraud Referral Sheet and upon which the investigator relied in making any recommendations to pursue a case for suspected fraud.
Malik argues that even if the deliberative process privilege applies to the Statement of Findings and Fraud Referral Sheet, the Government has waived the privilege by bringing the instant lawsuit alleging, in essence, that the Government was not aware Malik had previously been married in Pakistan and placing the state of the Government's knowledge at issue. Malik argues that the Government's state of mind is at issue because the Complaint alleges the facts omitted on Malik's forms would have influenced the adjudicator's decision and thus were "material." Malik further argues that the Government's knowledge of his first marriage is critical, because the Government must prove by clear, convincing, and unequivocal evidence that the information omitted about his first marriage and divorce in Pakistan would have affected the adjudicator's decision, in that it would have led to a different result if the Government had been aware of it. Malik's theory is that if the Government would have reached the same result had it known about Malik's prior marriage and divorce, then the Government cannot meet its burden at trial.
Malik argues multiple courts have held that the Government waives the deliberative process privilege by placing its own knowledge at issue. He cites to two district court cases from other districts finding the Government waived the deliberative process privilege by asserting claims against a defendant who raised issues about the Government's knowledge.
The Government argues there is no such automatic waiver in this case, noting that the rationale behind the deliberative process privilege is no less important or valid for federal agencies with enforcement authority that frequently litigate as plaintiffs. The Government maintains Malik must still articulate a valid need for the documents necessary to overcome the privilege. While acknowledging the existence of conflicting authority on whether there is an automatic waiver, the Government posits that a better reading of the law is that the privilege is not waived by its bringing an action affirmatively. Instead, the Government suggests that the Court should reject automatic waiver and employ the five-factor test for determining whether the privilege can be overcome by a showing of sufficient need.
After reviewing the applicable case law regarding waiver, the Court is not persuaded by Malik's argument or the cases finding an automatic waiver of the deliberative process privilege when the Government is the plaintiff or the Government's decision-making process itself is at issue. As noted by the District of Colorado case, Securities and Exchange Commission v. Nacchio, there is a lack of unanimity among courts that have addressed the waiver issue.
The deliberative process privilege is a qualified privilege and can be overcome if the party seeking discovery shows sufficient need for the otherwise privileged material, with the court required to balance the litigant's need for the disclosure against the Government's need for secrecy.
Malik argues that even if the Court finds the privilege applies, the Government should be ordered to produce the two documents at issue because he has shown a compelling need for the documents to defend himself in this denaturalization suit. Malik addresses the five factors noted above as follows: (1) the two documents are plainly relevant, as they recite at length what the Government knew to be the case or thought to be the case about Mr. Malik's first marriage and divorce; (2) these documents are not available anywhere else, as they are in the sole custody of the Government; (3) the litigation is incredibly serious, as it risks stripping Malik of his citizenship and could lead to his deportation; (4) the Government clearly has a role as the Plaintiff in this litigation; and (5) revealing the disclosure is not likely to hinder or discourage frank and independent discussions, because there is a presumption of regularity. Malik adds as further support of his need for these documents that the issue at stake is not whether someone advocated bringing this suit. Rather, the relevant information is the state of the Government's knowledge at specific times and what it would have done with the information it says Malik withheld, yet the sole evidence on this subject is being withheld pursuant to a privilege designed only to protect opinions, not facts.
After careful consideration, the Court finds that Malik's need for the two documents is outweighed by the harm likely to result from their disclosure. The Court agrees with Malik regarding the first, third, and fourth factors. Clearly the two documents are relevant to the issues in this case. This denaturalization litigation is serious, and the Government's significant role in this case is obvious.
However, the second and fifth factors weigh heavily against disclosure. As the Government points out, Malik can obtain the factual information contained within the documents by other means. The Court has recently extended the discovery deadline. Malik can depose witnesses, including organizational and Government witnesses; propound additional interrogatories; request additional production of documents; and review the pleadings and discovery provided. Malik fails to rebut this argument. His contention that these documents are not available from any other source misses the point. The question is whether "other evidence" is available from which Malik can discover the factual information he seeks. Moreover, allowing disclosure of these internal agency decision-making documents would likely have a chilling effect on agency employees, and would likely slow down operations, undermine fraud prevention efforts, and decrease accuracy.
The Court finds that the risk of harm to the Government from disclosure is significant because of the resulting "possibility of future timidity by government employees who [would] be forced to recognize their secrets are violable."
Additionally, the Government indicates that the Statement of Findings and Fraud Referral Sheet were used for internal agency decision-making and will not be used as evidence against Malik. Documents such as these are key tools in USCIS's priority activities of preventing and addressing immigration fraud. The Government's interest in preventing the disclosure of these confidential intra-agency documents outweighs Malik's need for the documents.
The Government contends that the information it redacted from the one-page I-485 Processing Sheet—which it describes as the results of the FBI's database name check for Malik—is protected from disclosure under the law enforcement privilege. It argues that the redactions are proper because disclosure of this information would undermine the agency's ability to conduct law enforcement operations and would reveal its methods. It attaches the Declaration of Kevin Donovan, who is the Section Chief of the FBI's National Name Check Program Section. Mr. Donovan states that the FBI does not publicly disclose name check results or any underlying or indices search results because to do so could alert a litigant or other individuals to the existence of pending investigations and thus potentially compromise those investigations, confidential sources, and investigative techniques.
Malik argues that the Court should reject the Government's claim of privilege on the redacted portions of the I-485 Processing Sheet. He claims that the Government has not identified with particularity what information is being redacted under the law enforcement privilege and why it falls within the scope of the privilege. He also argues the privilege does not apply to the redacted information because the Government has already revealed the name of the officer who conducted the interview and wrote the notes on the sheet.
The law enforcement investigative privilege is "based primarily on the harm to law enforcement efforts which might arise from public disclosure of . . . investigatory files."
The Court has reviewed an unredacted copy of the I-485 Processing Sheet as part of its in camera review and notes that only a narrow section across the middle of the document, which contains little information, has been redacted. The Government has explained that the information it redacted from the I-485 Processing Sheet are the results of the FBI's database name check for Malik. It has further explained the negative impact on law enforcement activities that would result from disclosure of this information. Based upon the statements made in the Donovan Declaration submitted by the Government, the Court concludes that the Government has established all elements for asserting the law enforcement privilege for the redacted material. Finally, Malik has not shown a compelling need for the redacted name check results information that outweighs the need for confidentiality of this information to overcome the privilege. Malik's motion to compel an unredacted version of the I-485 Processing Sheet is therefore denied.
