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Tuffly v. U.S. Department of Homeland Security

United States Court of Appeals, Ninth Circuit

September 13, 2017

Edward Tuffly, AKA Bud Tuffly, Plaintiff-Appellant,
v.
U.S. Department of Homeland Security, Defendant-Appellee.

          Argued and Submitted June 5, 2017 Pasadena, California

         Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding D.C. No. 2:15-cv-00067-ROS

          Michael Bekesha (argued) and James F. Peterson, Judicial Watch Inc., Washington, D.C., for Plaintiff-Appellant.

          Robert D. Kamenshine (argued) and Matthew Collette, Appellate Staff; John S. Leonardo, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Defendant-Appellee.

          Before: Sidney R. Thomas, Chief Judge, Stephen Reinhardt, Circuit Judge, and Edward R. Korman, [*] District Judge.

         SUMMARY [**]

         Freedom of Information Act

         The panel affirmed the district court's summary judgment in favor of the United States, and the district court's finding that the government had properly withheld former detainees' names under Freedom of Information Act ("FOIA") Exemption 7(C).

         Edward Tuffly, the treasurer of the National Border Patrol Council, the union for Border Patrol agents, sought to compel under FOIA the disclosure of the names of 149 non-citizens who were released from detention pending a final determination whether they will be removed.

         The panel held that the released detainees had a substantial privacy interest that outweighed the public interest in the disclosure of their names. Specifically, the panel held that so long as the disclosure of the information would give rise to a potential, nontrivial invasion of personal privacy, there was a privacy interest to be balanced against the public interest under FOIA Exemption 7(c). In weighing the public interest versus the privacy interest, the panel held that the privacy interests in this case were particularly strong, both because of the context of immigration enforcement and because of the private information already disclosed by the government that would be linked to the names of the released individuals; and the public interest in evaluating the effects of government actions would be advanced only minimally by information that Tuffly sought.

          OPINION

          REINHARDT, Circuit Judge:

         Edward "Bud" Tuffly, the treasurer of the National Border Patrol Council, the union for Border Patrol agents, seeks to compel, under the Freedom of Information Act, the disclosure of the names of 149 non-citizens who were released from detention pending a final determination whether they will be removed-names that could be linked to other personal information that has already been released. In opposing release of the names, the government invoked FOIA's personal privacy exemptions, finding that the former detainees had a privacy interest in the non-disclosure of their names, and that Tuffly did not assert a countervailing public interest. Tuffly disagreed, and filed suit in the district court. On summary judgment, the district court found that the government had properly withheld the former detainees' names under FOIA Exemption 7(C). Tuffly, represented by Judicial Watch, appealed. We hold that the released detainees have a substantial privacy interest that outweighs the public interest in the disclosure of their names, and affirm.

         I.

         In February 2013, the Department of Homeland Security (DHS) announced that, due to "fiscal uncertainty, " it was releasing from detention a number of non-citizens who were in removal proceedings. The Department issued a statement reading:

As fiscal uncertainty remains over the continuing resolution and possible sequestration, ICE has reviewed its detained population to ensure detention levels stay within ICE's current budget. Over the last week, ICE has reviewed several hundred cases and placed these individuals on methods of supervision less costly than detention. All of these individuals remain in removal proceedings. Priority for detention remains on serious criminal offenders and other individuals who pose a significant threat to public safety.

         The Department also stated that "[t]he detainees who've been released can be characterized as non-criminals and other low risk offenders who do not have serious criminal histories that would subject them to mandatory detention. Detainees with serious criminal histories are a detention priority and have not been released."

         Following the announcement by DHS, USA Today filed a FOIA request asking for information about the detainees released pursuant to the new policy. In response, the government provided records demonstrating that two-thirds of the 2, 200 individuals who were released had no criminal records. The records also showed, however, that several of the released detainees had been charged with more serious crimes, including kidnapping and homicide, although they did not indicate whether any of them had actually been convicted. The records also did not disclose the former detainees' names or other identifying information. In October 2014, USA Today published an article discussing the information contained in the released records.[1]

         The next month, inspired by the publication of the USA Today article, Tuffly filed a FOIA request with ICE.[2] Tuffly sought the "[r]ecords sufficient to identify all ICE detainees released in late February or early March 2013" from five Arizona detention facilities. Tuffly also requested records sufficient to identify the date of each detainee's release, his criminal history or criminal charges at the time of release, the methods of supervision to which he was subjected, and information about whether the detainee appeared for subsequent removal proceedings or was removed from the United States. In his FOIA request, Tuffly stated that this information would "enable [him], other members of the public and the media to investigate public records pertaining to the detainees' prior convictions and arrests and potentially shed light on ICE's decision to release these detainees." Tuffly also asserted that the disclosure would "shed light on the risk to the public posed by the detainees' release and ICE's performance of its duties and responsibilities."[3]

         DHS complied with Tuffly's request, but redacted the names, file numbers, and case identification numbers of the 149 released detainees identified in the records. In doing so, the agency invoked FOIA Exemptions 6 and 7(C), which permit the government to withhold personnel or law enforcement files that implicate personal privacy.[4] The government explained that in applying the exemptions, it had "considered the privacy interests of the aliens in remaining free from embarrassment, humiliation, annoyance, harassment, intimidation, un-official questioning, retaliation or physical harm for having been detained in a detention facility." Moreover, the government stated that Tuffly "failed to articulate any public interest that could be advanced by releasing the [personal] information, " and that "the redaction was limited to the name[s] of the individual[s] or other personally identifiable information which, if released, would not shed light on the operations or activities of ICE."

         In January 2015, Tuffly filed a lawsuit in the district court, seeking the release of the names of the 149 individuals. The district court found that releasing their names "would constitute a significant invasion of privacy." The court then concluded that Tuffly failed to demonstrate that the public interest in obtaining the names outweighed the privacy interests at stake. Finding that the government properly withheld the names of the ...


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