Foia Exemption B5 Training Materials Given To US-CIS Processors

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US-CIS recently released 60 pages of its training materials, dated March 11, 2020, on Exemption B5 given to its FOIA processors. The pages are posted on the “FOIA” page of the Louise Trauma Center, and are labeled “March 11, 2020 Training on B5.”

Some excerpts:

The Deliberative Process Privilege permits “the government to withhold documents relating to policy formation to encourage open and independent discussion among those who develop governmentpolicy.” [Page 8]

Is it a factual accounting of a case? If so, then it is usually releasable, unless it is Attorney Work Product or Attorney-Client Communication. Are the comments sensitive? Is there reasonably foreseeable harm in releasing the information? [Page 12]

If facts are “reasonably segregable” they should be released. But, do not release if the facts were selected out of a larger group of facts, or if the very act of the selection is deliberative in nature. [Page 11]

HARMS:

Release could cast a chilling effect upon open, frank and honest discussions on matters of policy between subordinates and superiors;

Release could cause premature disclosure of proposed policies before they are finally adopted; (Cat out of the bag)

Release could cause public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the agency’s action. [Page 17]

MARRIAGE FRAUD INTERVIEW [STOKES]: these frequently contain deliberative process [Page 20]

ASYLUM INTERVIEW NOTES [Page 25]

Form I-870 (Record of Determination/Credible Fear Worksheet [Page 27]

Page 28: Assessment to Refer, terminate or Grant:

“release the factual information”

Page 31: Form I-696 “Legalization/SAW Examinations”

Redact recommendations

Page 33: Form I-205 “Warrant of Removal/deportation”

“If the warrant has been executed by a CBP official release in full”

Page 37 Attorney Work Product

B5 applies to “trial attorney notes or worksheets”

Page 39 Attorney work product

Page 40 Form I-703 (Record of Acton/Attorney Worksheet

Page 46 National BenefitsCenter-Contractor Processing Review Checklist I-485

47 N-400 (Continuation Processing Worksheet)

48 JABS Personal History Report

49 Naturalization Prosecutorial Discretion Review Panel (NTA Panel)

[several pages on NTA Panel]

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COMMENTS BY THE AUTHOR

The materials do not explain how to determine when “harm” will or will not result upon release. The FOIA Improvement Act of 2016 added a section: even if the material is protected by B5, the agency should release it, unless it reasonably foresees harm upon release. How is the processor to know if release of a particular document would or would not cause harm? The materials do not attempt to answer this.


About The Author

David L. Cleveland, a lawyer in Washington, DC, has earned over $100,000 in attorney fees from the government in FOIA cases. He has also secured asylum or withholding for people from 48 countries. Contact him at mailto:1949.david@gmail.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.