Court Criticizes Obama DHS on Stealth Amnesty Document, FOIA Secrecy in Judicial Watch Suit

Court Provides DHS One “Final” Opportunity to Adequately Explain Reasons for Withholding Documents

(Washington, DC) – Judicial Watch, the organization that investigates and fights government corruption, announced today that the United States District Court for the District of Columbia issued a ruling on January 27, 2012, criticizing the Obama Department of Homeland Security (DHS) for failing to abide by Freedom of Information Act (FOIA) law in a Judicial Watch lawsuit seeking records related to the agency’s policy of suspending some illegal alien deportations (Judicial Watch v The Department of Homeland Security ( No. 11-00604)).

Judicial Watch filed its original FOIA request with DHS on August 30, 2010, and subsequent lawsuit on March 23, 2011, after the DHS stonewalled the release of records.  The Obama administration filed a Motion for Summary Judgment in the lawsuit on August 4, 2011, asking the court to end Judicial Watch’s lawsuit.  U.S. District Judge Colleen Kollar-Kotelly granted DHS’s motion regarding some select records, but also denied the motion in part and chastised the agency for its inadequate explanations as to why it was withholding certain documents:

• Regarding assertions of attorney-client privilege, the court listed a series of “egregious” examples demonstrating DHS’s unwillingness to specify reasons for exempting documents from disclosure and concluded, “In the end, DHS’s generalized and non-specific showing fails to satisfy the court that the attorney-client privilege has been properly invoked in connection with the information withheld from Judicial Watch.”

• The court drew a similar conclusion regarding memoranda and communications that DHS was withholding pursuant to the attorney work product privilege, which protects materials “prepared in anticipation of litigation or for trial by or for another party or its representative.”  The court ruled:  “Absent a more particularized showing from DHS, the Court cannot conclude that DHS has applied the appropriate standard in this case…”

• Regarding the deliberative process privilege, which protects “documents reflecting advisory opinions, recommendations and deliberations comprising a part of the process by which governmental decisions and policies are formulated,” Judge Kollar-Kotelly wrote, “The Court agrees with Judicial Watch that DHS has failed to provide sufficient factual context for much of the information withheld under the deliberative process privilege to allow the Court to conclude that the privilege has been properly invoked.”

Although the court had the ability to force disclosure under these circumstances, Judge Kollar-Kotelly allowed DHS one “final” opportunity to establish the applicability of these privileges to the information withheld from Judicial Watch.

The Obama administration’s campaign to suspend the deportations of most illegal aliens has been subject to intense scrutiny since 2010, when the press uncovered a United States Citizenship and Immigration Services memo that contemplated various “administrative alternatives” to bypass Congress and implement stealth amnesty for illegal aliens.  A subsequent Houston Chronicle story exposed an effort by the administration to suspend the deportations of illegal aliens who supposedly have not been convicted of any “serious” crimes.

Documents previously uncovered by Judicial Watch show that DHS officials misled Congress and the public about the scope of the immigration enforcement policy change, which gave wide latitude to local immigration officials to dismiss illegal alien deportation cases – including the dismissal of charges against illegal alien criminals convicted of violent crimes.  The Obama administration announced recently that it would effectively halt any enforcement actions (on an alleged “case-by-case” basis) against any illegal alien who has not committed any other “serious” crimes.

“The court’s ruling shows the secrecy games by the Obama DHS.  Clearly the Obama administration wants to obscure the truth about its lawless illegal alien deportation policy.  The Obama DHS believes it should be able to withhold records from the American people without explanation or justification.  We’re pleased the court would not allow DHS to continue its contempt for FOIA law.  We look forward to continuing our legal pursuit of these records,” stated Judicial Watch President Tom Fitton.