Court of Appeals Decisions
Appleton Papers, Inc. v. EPA, No. 12-2773, 2012 WL 6684770 (7th Cir. Dec. 26, 2012) (Flaum, J.). Holding: Affirming the district court's grant of summary judgment to defendants on the grounds that the responsive material was protected by the attorney work-product privilege under Exemption 5. Attorney Work-Product: First, the Seventh Circuit discusses the difference between the application of the work-product privilege in a discovery context and in a FOIA context. While "there are ways to overcome the privilege in an individual case[,]...case-specific considerations" are ignored in the FOIA context. This is because "each member of the public is equally entitled to make a FOIA request." Therefore a FOIA requester cannot "make fairness arguments related to a hypothetical case[,] hypothetical litigant, [or]... assert that it would be entitled to the document in litigation with the government."
The Seventh Circuit then rejects the plaintiff's argument that "factual material underlying the report's conclusions is not protected work product." Rule 26 of the Federal Rules of Civil Procedure protects all work-product. While factual work-product is "discoverable in the rare case where [a] party makes the 'substantial need' showing,...'opinion' work product remains protected" even with this showing. Additionally, as discussed above, a plaintiff may overcome the privilege by demonstrating a substantial need in individual litigation. These same "case-specific considerations" are not applicable in the FOIA context.
Brennan Ctr. for Justice at New York Univ. Sch. of Law v. DOJ, No. 11-4599, 2012 WL4094885 (2d Cir. Sept. 19, 2012). Holding: Affirming the district court's grant of summary judgment for the plaintiff with respect to one memorandum and reversing and remanding with respect to the other two memoranda. Deliberative Process Privilege/Adoption: The Second Circuit begins its analysis "by examining the process by which the [document] was created." Because "[n]o one at the OLC made the decision that the pledge requirement as it pertained to domestic organizations would not be implemented," the memoranda detailing OLC's "advice on the constitutional and legal propriety of the implementation of the pledge requirement" were predecisional and deliberative.
However, as to the February 2004 memorandum, the Second Circuit concludes "that the OLC's views were adopted by reference by USAID in nonexempt communications, and therefore must be disclosed." Two public statements referencing the February 2004 memorandum "taken together establish express adoption or incorporation by reference" because these references "demonstrate sufficient reliance on both the conclusion and reasoning of the OLC memorandum to remove the protection of the deliberative-process exemption." The Second Circuit explains, that when an agency "referenc[es] a protected document as authoritative, it cannot then shield the authority upon which it relies from disclosure."
As to the July 2004 memoranda, the Second Circuit concludes "that the district court erred in ordering disclosure of the July memoranda." "[T]here is no evidence that [the agencies] based [their] change in policy on the draft memoranda." Neither a general reference to guidance from the Department of Justice, nor "the fact that the agencies acted in conformity with the July memoranda" indicate that the agencies "adopted the reasoning of the July memoranda." The Second Circuit determines that there is "insufficient evidence that those memoranda were expressly adopted or incorporated by reference...or became the 'working law' of the agency, sufficient to remove the deliberative-process protection."
Attorney-Client Privilege: The Second Circuit notes "[a] party's reliance on an otherwise privileged communication to assert a claim or defense is similar to the type of express adoption or incorporation by reference that vitiates Exemption 5 protection – in either case the party cannot invoke that relied-upon authority and then shield it from public view. The references to the February 2004 memorandum that served to remove the deliberative-process privilege thus also constitute waiver of the attorney-client privilege."
Ctr. for Biological Diversity v. Office of the USTR, No. 10-35102, 2011 U.S. App. LEXIS 19197 (9th Cir. Sept.16, 2011) (unpublished disposition). Holding: Vacating the district court's grant of summary judgment to defendant; and remanding for further proceedings. Threshold: The Ninth Circuit determines that "[t]he district court also lacked an adequate factual basis to rule on the propriety of the USTR's withholding of certain documents under Exemption 5." The Ninth Circuit finds that "[m]any of the records at issue here are communications between government officials and private third parties," and notes that "[t]his fact alone suggests they do not meet Exemption5's threshold requirement." The Ninth Circuit concludes that "[t]he record is insufficiently developed" as to "nature of the relationships between the government agency and the third party or parties." As such, the Ninth Circuit remands for the district court to consider whether the documents satisfy the "inter-agency or intra-agency" threshold of Exemption 5.
The D.C. Circuit holds that communications exchanged between the Board and the FRBNY qualify as intra-agency memoranda under Exemption 5. The D.C. Circuit rejects plaintiff's argument that "the Board failed to demonstrate that the FRBNY's interest is identical to that of the Board" as required by the Supreme Court in Klamath. Rather, the D.C. Circuit finds that "[u]nlike the Indian tribes [in Klamath] the FRBNY '[did] not represent an interest of its own, or the interest of any other client, when it advise[d] the [Board]' on the Bear Stearns loan." Noting that the Federal Reserve System requires "the Board and Reserve Banks [to] work together" to achieve certain national economic goals, the D.C. Circuit concludes by finding "[t]hat the Congress requires both the Board and the relevant Reserve Bank (here, FRBNY) separately to determine that the loan made to Bear Stearns through JPMorgan promotes the maintenance of a sound and orderly financial system does not mean that the Board's and the FRBNY's interests diverged in deciding to make the loan."
The D.C. Circuit also dismisses plaintiff's claim that "the Board failed to show it solicited the withheld material from the FRBNY as [D.C. Circuit] precedent requires." To the contrary, the D.C. Circuit finds that the Board's declaration "adequately demonstrates that the Board solicited the material from the FRBNY." The D.C. Circuit highlights the economic climate against which the Board acted, noting that the Board "found itself reacting to what it believed to be an emergency, as evidenced by its decision 'to provide temporary emergency financing to Bear Stearns.'" In order to assess the real-time exposure of large complex banking organizations (LCBOs) to a Bear Stearns failure, the Board turned to FRBNY which is tasked with "monitoring of LCBOs and advising the Board of their financial condition." As such, the D.C. Circuit concludes that "to aid in its deliberative process, the Board sought information from the FRBNY about the financial condition and exposures of institutions monitored by the FRBNY" and that "[t]he FRBNY did not simply provide the information, unprompted, to the Board."
McKinley v. Bd. of Gvn'rs of the Fed. Reserve Sys., No. 10-5353, 2011 WL 2162896 (D.C. Cir. June 3, 2011) (Henderson,J.). Holding: Affirming the district court's grant of summary judgment to the Board based on its finding that the Board's withholdings pursuant to Exemption 5 were appropriate. The D.C. Circuit determines that the Board properly invoked the deliberative process privilege to protect certain memoranda. The D.C. Circuit rejects plaintiff's claim that a "record is 'deliberative' only if its disclosure would harm the agency's decisionmaking process." Instead, the D.C. Circuit finds that "Congress enacted FOIA Exemption 5 . . . precisely because it determined that disclosure of material that is both predecisional and deliberative does harm an agency's decisionmaking process." Moreover, the D.C. Circuit notes that "[i]t would be impossible for courts to administer a rule of law to the effect that some but not all information about the decisional process may be disclosed without violating Exemption 5." Additionally, here, the D.C. Circuit concludes that "the Board has demonstrated that disclosure of the withheld material would 'discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions" because it "'would impair the Board's ability to obtain necessary information in the future[ ] and could chill the free flow of information between the [supervised] institutions and the Board and Reserve Bank[s].'"
The D.C. Circuit holds that the Board properly asserted the attorney work product privilege to protect one document that "'was prepared by FRBNY attorneys in anticipation of litigation by Bear Stearns shareholders related to the Board's authorization to extend credit to [Bear Stearns] indirectly through [JP Morgan]." Because the D.C. Circuit has already "concluded that the FRBNY did indeed act as a consultant to the Board," it rejects plaintiff's argument against the application of the attorney work product privilege premised upon his position that "FRBNY does not come within the consultant corollary." Moreover, the D.C. Circuit finds that "[t]he FRBNY, acting as the Board's consultant, prepared the withheld document for the Board in anticipation of litigation."
Adamowicz v. IRS, Nos. 10-263 & 10-265, 2010 WL 4978494, 106 A.F.T.R. 2d 2010-7259 (2d Cir. Dec. 8, 2010) (unpublished disposition). The Second Circuit concludes that the district court properly determined that "documents containing (1) privileged legal communications between [a particular IRS attorney] and attorneys within the IRS and the U.S. Department of Justice, (2) communications among those attorneys, and (3) [an IRS attorney's] memorialization of such privileged communications" were protected by the attorney client privilege. The Second Circuit also rejects plaintiffs' challenge to the IRS's assertion of the deliberative process privilege, finding that "[t]he documents at issue reflect the consultative process underlying IRS decisions concerning the [IRS's examination of the estate's tax return], the FOIA requests, and related litigation, and are therefore entitled to the same protection as other important agency decisions." Additionally, "[t]he fact that the deliberative materials were generated by a low-level official . . . and not circulated or condidered by a final decisionmaker does not alter this conclusion."
Pub.Citizen, Inc. v. OMB, No. 08-5004, 2010 WL 820479 (D.C. Cir. Mar. 11, 2010) (Tatel, J.). Note: The court reissued its June 19, 2009 decision. The holding remains consistent with the opinion that it superceded, which was reported in Decision 837, i.e., the documents are not related predominantly to OMB's internal practices and so do not qualify under Exemption 2, and are not protected in their entireties under Exemption 5. The case is remanded to the district court.
Batton v. Evers, No. 08-20724, 2010 WL 625988 (5th Cir. Feb. 24, 2010) (Haynes, J.). IRS appropriately withheld documents reflecting revenue agents' "'development and analysis . . . as well as their opinions and recommendations as to the direction of the examination and a possible criminal referral.'" However, the court has "no factual findings to review as to whether the [withheld documents] include factual information as [plaintiff] asserts and, if so, whether that information is segregable." Defendant will be required "to provide 'at least the minimal information necessary to make a determination.'"
Elec. Frontier Found. v. Office of the Dir. of Nat'l Intelligence, 595 F. 3d 949 (9th Cir. 2010) (Hawkins, J.). The court finds that the district court's ruling ordering release of all documents withheld under Exemption 5 was overly broad, as it did not distinguish between documents that were circulated outside the Executive Branch and those that remained wholly within the Executive Branch. On remand, the district court must give more thorough consideration to the distinction between these two classes of documents. For those documents the district court determines meet the threshold standard, the court will then have to determine whether these documents were subject to any privilege asserted by defendants.
Hunton& Williams v. DOJ, No. 08-1635, 2010 WL 9947 (4th Cir. Jan. 4, 2010) (Wilkinson, J.) (dissenting opinion by Michael, J.). The court rejects plaintiff's argument that defendant cannot meet the Exemption 5 threshold at all due to the fact that it exchanged documents with Research In Motion (RIM), a private party. "The common interest doctrine permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims. . . . Under [plaintiff's] reading, however, the decision of a party, here the government, to partner with others in the conduct of litigation would somehow subject that party to the loss of its most basic civil discovery privileges . . . . This is a sweeping view, and its impact on the government's ability to conduct complex and multi-faceted litigation would be staggering. We have made clear that the government was entitled . . . to a level playing field. . . . And there is nothing in FOIA that prevents the government from drawing confidential counsel from the private sector." Indeed, when the government communicates with other parties "with whom it shares a singular and unitary litigation interest," "[i]t is that convergence of interests that entitles the government to communicate within the terms of the Exemption." Moreover, "[i]t would eviscerate the meaning of Exemption 5 if we were to read it to exclude communications between federal agencies and their litigation partners where those communications advance an interest that is both common and, in the government's considered view, critical to the public's interest." Furthermore, "[i]t does not matter that RIM was motivated by the commercial benefit that would accrue to it if it succeeded in opposing the BlackBerry injunction while the government was motivated by concern for the public interest. What matters is that there was a unity of interest in preserving a non-disruptive pattern of governmental BlackBerry use." Plaintiff argues that the common interest doctrine should not apply because the doctrine requires the presence of an adverse party. Even if true, "there was ample evidence to support the district court's conclusion that [plaintiff's client] was, in fact, adverse to DOJ and RIM." The court disagrees with the district court's finding as to when the common interest doctrine became applicable, which is the point at which documents exchanged between RIM and DOJ are protectible. "[M]ere 'indicia' of joint strategy as of a particular point in time are insufficient to demonstrate that a common interest agreement has been formed." This avoids "[t]he danger . . . that mere lobbying efforts, as opposed to joint litigation strategy, will be removed from FOIA's reach." The court finds that "[w]hile agreement need not assume a particular form, an agreement there must be." In making a determination as to when an agreement was reached, as opposed to an outside party's lobbying of the government, "it is significant if communications were initiated by the private party, if the bulk of the communications came from a private party, and if there are sparse indications that the government had come to terms with the public interest at stake in the case." Furthermore, "[t]he fact that DOJ later concluded it shared RIM's interest does not protect communications between the two before that decision was made." On remand, the district court is directed to make a determination as to when a common interest agreement was reached, applying the principles set out in this opinion.
Lahr v. NTSB, No. 06-56717, 2009 WL 1740752 (9th Cir. June 22, 2009) (Berzon, J.). Upon in camera review, the court determines that defendants properly withheld several documents under the deliberative process privilege. The documents are both predecisional and deliberative, and release would "expose . . . internal deliberations in such a way that would discourage candid discussion and effective decisionmaking."
Public Citizen, Inc. v. OMB, No. 08-5004, 2009 WL 1709216 (D.C. Cir. June 19, 2009) (Tatel, J.) (concurring/dissenting opinion filed by Williams, J.). "OMB claims that because of its 'unique role and position in the Executive Branch' as advisor to the President, its documents are '"by their nature"' predecisional and deliberative and cannot constitute '"working law."' OMB's advisory role may well mean that some -- indeed, even many -- documents it produces are predecisional in nature, but the blanket application of Exemption 5 it seeks goes too far: carried to its logical conclusion, the argument would exempt virtually all OMB documents from disclosure." Thus, "[t]o the extent the documents at issue in this case neither make recommendations for policy change nor reflect internal deliberations on the advisability of any particular course of action, they are not predecisional and deliberative despite having been produced by an agency that generally has an advisory role. And although it might well be difficult to determine at what point OMB's recommendations about the suitability of a particular piece of proposed legislation have been sufficiently adopted to qualify as 'working law,' . . . . [d]ocuments reflecting OMB's formal or informal policy on how it carries out its responsibilities fit comfortably within the working law framework." Similarly, "an agency's application of a policy to guide further decision-making does not render the policy itself predecisional." Neither do the documents qualify as predecisional because "they 'serve as a starting point for discussions within OMB concerning possible changes to OMB's practices.'" If this were true, "it would be hard to imagine any government policy document that would be sufficiently final to qualify as non-predecisional and thus subject to disclosure under FOIA." Furthermore, even if OMB were correct, the documents would still not qualify as deliberative, because they merely explain current policies, rather than making recommendations. Finally, a list of agencies that do not submit materials to OMB for clearance is itself factual. The district court is ordered to perform a segregability analysis to ensure that OMB has only withheld predecisional, deliberative materials.
District Court Decisions
Comptel v. FCC, No. 06-1718, 2012 WL 6604528 (D.D.C. Dec. 19, 2012) (Lamberth, J.). Holding: Denying cross-motions for summary judgment and ordering FCC to file an amended declaration and Vaughn index. As an initial matter, the court finds that the FCC has not established that "communications with SBC [the company being investigated] or USAC [the Universal Service Administrative Company] should be considered inter- or intra-agency in nature." The court expresses doubt "that communications with SBC could meet the requirements for consultant corollary outlined by Klamath and other relevant cases. SBC was being investigated by the FCC and was not a disinterested third party providing advice to the agency." With regard to USAC, the FCC did not provide an explanation for why the communications qualified for the consultant corollary.
With regard to documents withheld under attorney-client privilege, the court finds that "[t]he FCC has done nothing to show that material for which the attorney-client privilege was invoked involved confidential communications or that it related to a legal matter for which the client sought legal advice." The court points out that there are actually instances where "the information submitted by FCC sometimes suggests an absence of confidentiality."
The court also indicates that the FCC must provide more detail regarding information withheld under the attorney work-product privilege. The court finds that the FCC's assertions of the privilege are too conclusory and states that "the FCC must identify the nexus between the documents and any potential litigation or settlement thereof."
The court similarly finds that the FCC has not provided enough detail with regard to its invocation of the deliberative process privilege. "[T]he FCC's Vaughn index is not sufficiently detailed for the Court to ensure that the documents meet both the predecisional and deliberativeness requirements." However, the court rejects plaintiff's argument that "documents post-dating the consent decree for which the FCC has invoked the deliberative process privilege" may not be withheld under the deliberative process privilege. The court states that "[a] document may post-date one decision but still be predecisional with respect to another decision." Finally, the court notes that facts need not be segregated in documents withheld under the attorney work-product privilege. Here documents were withheld under both the attorney work-product and the deliberative process privilege. However, "the agency must show that the document itself is fully protected as work product and then must state that it considered whether non-protected material could be segregated."
Roman v. CIA, No. 11-CV-2390 (JFB) (WDW), 2012 WL 6138487 (E.D.N.Y. Dec. 11, 2012) (Bianco, J.).Holding: Granting defendant's motion for summary judgment.The court concludes that the defendant's declaration "sufficiently explains why each withheld document was deliberative in nature and exempt under the deliberative process privilege, a privileged communication between the agency and its attorneys and exempt under the attorneyclient [sic] privilege, or contained work product of an attorney which was prepared in anticipation of litigation and exempt under the attorney work-product doctrine." Segregability: The agency conducted a "line-by-line" review of the records and determined that the "nonexempt information is 'so inextricably intertwined with exempt material that no portions can be reasonably segregated and released.'" The court finds that the "[p]laintiff has produced no evidence that the agency's declarations were made in bad faith, or that their detailed response should not be accepted by the Court."
Am. Immigration Council v. DHS, No. 11-1971 (JEB), 2012 WL 5928643 (D.D.C. Nov. 27, 2012) (Boasberg, J.). Holding: Dismissing portions of the complaint related to USCIS's failure to respond to the request and the release of certain records as moot; denying USCIS's motion for summary judgment with respect to the adequacy of the search and the assertion of Exemption 5 for specific withholdings, but granting summary judgment as to the other holdings under Exemptions 5 and 6. “Inter-Agency or Intra-Agency” Threshold: The court proclaims that e-mails between USCIS and a liaison from a private organization "flunk the threshold requirement of Exemption 5." The court continues by stating: "When the liaison initiates the contact...and communicates 'with [her] own, albeit entirely legitimate, interests in mind' – as the liaison did here – the e-mails cannot be considered an inter-agency or intra-agency communication." By contrast, internal minutes of meetings with a private organization where it presented complaints "at the behest of USCIS" "qualify as intra-agency or inter-agency records under Exemption 5."
Deliberative Process Privilege: The court finds that "USCIS repeatedly casts records as predecisional when they actually convey what the Agency's policymakers have decided." The court explains that "training slides are neither predecisional nor deliberative [because] a training is not a step in making a decision; it is a way to disseminate a decision already made." Similarly, documents given to immigrants by USCIS and a memorandum providing USCIS employees with guidance on the role of consultants cannot be withheld as predecisional and deliberative. However, USCIS properly withheld certain information, including draft memorandum between counsel regarding the legality of certain policies, e-mail exchanges "trying to figure out a policy for disruptive attorneys," and an e-mail exchange clarifying a new policy.
Attorney Work-Product Privilege: The court finds that USCIS has improperly asserted the attorney-work product privilege to withhold two records. First, although the training slides may have been prepared by attorneys, they were prepared "to convey routine agency policies" rather than "pointed advice... that anticipates litigation." Also, the court declines Exemption 5 protection for a memorandum that "seeks the best interpretation of the regulation at issue, with no hint that the decision was influenced by litigation, let alone that the memo was written 'because of' litigation."
Attorney-Client Privilege: The court concludes that the attorney-client privilege may not be asserted to withhold training slides. The court explains that such an assertion is supported "only insofar as [the slides] rest on confidential information obtained from the client" but "[these] slides themselves do not hint at underpinning of confidentialities."
Citizens for Responsibility and Ethics in Washington v. Dep't of Educ., No. 10-1712 (RMC), 2012 WL 5901027 (D.D.C. Nov. 26, 2012) (Collyer, J.). Holding: Granting summary judgment for the defendant regarding the adequacy of the search; denying plaintiff's motion for partial summary judgment concerning Exemption 5. Deliberative Process Privilege: The court rejects the plaintiff's argument that the agency "'no longer needs the confidentiality afforded by Exemption 5 'because it has issued its final regulations.'" The court explains that "later issuance of a regulation does nothing to change the nature of the documents themselves. As long as records are 'part of the deliberative process by which a decision is made,' they are exempt from disclosure."
Fox News Network, LLC v. Dep't of Treasury, No. 09 Civ 3045(FM), 2012 WL 5931808 (S.D.N.Y. Nov. 26, 2012) (Mass, Mag. J.). Holding: Granting in part and denying in part Treasury's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment. Attorney-Client Privilege: The court finds that the attorney-client privilege has been asserted properly for certain material. The defendant properly withheld material "reflect[ing] substantive discussion by and among the attorneys concerning the propriety of certain assertions in the draft statement and attached riders." The court concludes that "it is clear that the purpose of the emails was to obtain or provide legal advice."
Deliberative Process Privilege: After acknowledging that the defendant's "Vaughn Index and...Declaration, by themselves, are insufficient to support Treasury's claims[,]" the court makes its determinations after conducting an in camera review of the records. The court rejects Treasury's assertion that draft documents are "'inherently' predecisional and 'part of the deliberative process' of creating a final document." The court continues, "[i]f Treasury's theory were to be accepted, all drafts of all agency documents would be protected simply because of their status as preliminary versions of final documents."
The documents at issue relate to press releases, inquiries from the press, and related e-mails, which were withheld because "they reflect 'how best to present Treasury's position.'" In an earlier decision the court explained "that communication concerning how to present agency policies to the press or public, although deliberative, typically do not qualify as substantive policy decisions protected by the deliberative process privilege." The court states: "Drafts of public relations documents therefore may properly be withheld if their release would reveal the status of internal agency deliberations or substantive policy matters." Applying these principles, the court finds that disclosure of drafts of certain press releases and related e-mails would "reveal the evolution of Treasury's thinking regarding the proposed restructuring of the AIG investments." However, where it cannot be "shown that the materials relate to anything other than past events...[and] there is no indication that the 'public response' about which the author speaks involves policy action, rather than mere messaging[,]...documents are not entitled to protection under the deliberative process privilege."
Nat'l Whistleblower Ctr. v. HHS, No. 10-2120, 2012 WL 5463662 (D.D.C. Nov. 9, 2012) (Boasberg, J.).Holding: Granting defendant's motion for summary judgment.The court holds that the documents withheld "involve the typical deliberations that the [c]ourt would expect of government actors and do not evince the sort of corrupt decision-making process that would support an exception to Exemption 5." As an initial matter, the court rejects HHS's "contention that the government-misconduct exception cannot apply in FOIA cases." Examining an Office of Special Counsel letter provided by plaintiffs as well as their declarations explaining their allegations of misconduct, the court finds that there is a sufficient justification for "in camera review of the documents withheld pursuant to Exemption 5." The court stressed that in doing so it "did not weigh the evidence and find release of the documents warranted, only in camera review, which is a significantly lower threshold." After examining the documents, "the [c]ourt finds that they 'do not reflect any governmental impropriety, but ratherare 'part of the legitimate governmental process intended to be protected by Exemption 5.'" Segregability: The court also determines that HHS has provided a sufficient explanation of "its process for withholding documents." It further notes that even if this declaration had not been sufficient, "the [c]ourt has independently reviewed the documents in camera for the government-misconduct analysis above and is satisfied that Defendant complied with its duty to segregate exempt from non-exempt information in the records withheld or redacted under Exemption 5."
Zander v. DOJ, No. 10-2000, 2012 WL 5353516 (D.D.C. Oct. 31, 2012) (Bates, J.).Holding: Defendants' motion for reconsideration is granted in part to the extent it seeks an indicative ruling pursuant to FRCP 62.1(a)(3); Defendants' motion for reconsideration is held in abeyance because the court lacks authority to grant further relief unless the court of appeals remands the case. The court agrees that "all but one of the documents are protected from disclosure" under the attorney-client privilege. Analyzing the decision of the Court of Appeals for the District of Columbia Circuit in Mead Data Central, Inc. v. U.S. Dept. of Air Force, 566 F.2d 242 (D.C. Cir. 1977), and subsequent rulings, the court finds that the attorney-client privilege should be given the "same meaning" in "both the discovery and FOIA contexts." This ensures that the "FOIA may not be used as a supplement to civil discovery – as it could be if the attorney-client privilege were less protective under FOIA." The letters and e-mail from Federal Bureau of Prison employees to agency attorneys are protected because "they are 'confidential communications from clients to their attorneys made for the purpose of securing legal advice or services.'" "'[T]he attorney-client privilege protects' [this type of information] categorically, regardless of the confidentiality of the information the communications contain." The e-mail from the attorney to his clients, however, "is only privileged if it rests on confidential information obtained from the clients." The court determines that "one sentence in the e-mail... almost certainly rests on confidential information from the client [and] must therefore be redacted." There rest of the "e-mail generally does not rest on such information, and is hence subject to disclosure."
ACLU v. CIA, No. 11-0933, 2012 WL 4356338 (D.D.C. Sept. 25, 2012) (Jackson, J.).Holding: Granting defendant's motion for summary judgment as to all but one document and granting plaintiff's cross-motion for summary judgment as to the one document and remanding for further agency review. Deliberative Process Privilege: The court finds that information was properly withheld under the deliberative process privilege. The information withheld was predecisional. "Each of the documents reports on the findings of some investigation or analysis, and contains evaluations, opinions, and recommendations from one set of CIA officers to another." The documents "were part of an intra-agency evaluation process ... and were used to determine whether or not the agency should take some administrative action.
Ameren Mo. v. EPA, No. 4:11CV02051AGF, 2012 WL 4372518 (E.D. Mo. Sept. 25, 2012) (Fleissig, J.). Holding: Granting defendant's motion for summary judgment and denying plaintiff's request for attorney fees. Attorney-Client Privilege: The court finds that EPA has established that "preliminary, 'screening level' emissions analyses" are covered by the attorney-client privilege. It notes that these analyses were "prepared by EPA staff with the assistance of counsel to determine whether Plaintiff should have expected emissions to increase as a result of undertaking one or more projects at each emissions-producing unit." Additionally, the court notes that "apart from consultation with DOJ counsel representing [the] Defendant, the Withheld Documents" were not "disclosed to anyone outside of the EPA."
Attorney Work-Product Privilege: The court also finds that information was properly withheld pursuant to the attorney work-product privilege. "The Redacted and Withheld Documents constitute internal analyses of emissions data carried out by EPA scientists and engineers acting under the supervision of, or in consultation with, EPA and DOJ attorneys, and were compiled in reasonable anticipation of litigation and possible enforcement actions." The court rejects plaintiff's argument that the records are "purely factual" because they "involve data and calculations or are spreadsheets." Noting that the assessments "derive from raw data (that has been disclosed to plaintiff) selected and analyzed pursuant to its own formulas by Defendant's technical staff, scientists, and engineers, working in conjunction with or at the direction of attorneys," the court finds that the numeric information qualifies as work product because it "constitutes 'mental impressions, conclusions, opinions or legal theories.'"Segregability: The court finds that the defendant has disclosed all reasonably segregable information. With respect to the redacted documents, the court finds that the defendant "provided specific, detailed designations indicating the types of information redacted." With regard to documents withheld in full, the defendant's sworn statement shows that the "'factual information ... was determined to be inextricably intertwined with privileged information and ...could not be reasonably segregated."
Elec. Frontier Found. v. DOD, No. C 09-05460 SI, 2012 WL 4364532 (N.D. Cal. Sept. 24, 2012) (Illston, J.). Holding: Granting in part and denying in part defendants' motion for summary judgment; denying plantiff's motion for summary judgment. Attorney-Client Privilege: The court holds that ICE properly withheld an "email between ICE attorneys and ICE special agents concerning subpoena procedures for Facebook information" pursuant to the attorney-client privilege under Exemption 5. The court finds that "[t]he fact that the email at issue concerned 'procedures' does not undercut the government's position that what was occurring were discussions between attorneys and their clients of whether those procedures could be applied to a new and different context." With respect to the FBI's withholdings pursuant to the attorney-client privilege, the court notes that the FBI has properly withheld information under Exemption 5. "[T]he FBI has redacted information from email conversations from or to counsel, and withheld attached documents, regarding 'discussions' and questions as [to] whether certain policies 'apply' to new situations, 'impressions,' 'corrections' and 'changes' prior to guidance, 'tentative' guidance, seeking input regarding 'future' issues, and otherwise seeking legal advice that is not a 'neutral application of established policies."
Deliberative Process Privilege: The court holds that USSS properly withheld a memorandum concerning a system purchased to help detect threats. The court finds that the memorandum is "an analysis providing 'opinions and recommendations' regarding funding and functionality of a system" and thus properly withheld as "predecisional and deliberative."
Elec. Frontier Found. v. DOJ, No. 11-939, 2012 WL 4319901 (D.D.C. Sept. 21, 2012) (Leon, J.). Holding: Granting defendant's motion for summary judgment. Deliberative Process Privilege: The court concludes that the OLC Opinion is exempt from disclosure under the deliberative process privilege. The memorandum in question "'constitutes advice used by decision-makers at the FBI... in the context of their efforts to ensure that any [FBI] information-gathering procedures comply fully with the law.'" That court notes, "it is not hard to imagine how disclosure of the OLC Opinion would likely interfere with the candor necessary for open discussions on the FBI's preferred course of action."
ACLU v. DOJ, No. 09-0642, 2012 U.S. Dist. LEXIS 137204 (W.D. Wash. Sept. 21, 2012) (Lasnik, J.). Holding: Ordering the defendant to remove certain redactions and produce certain documents to plaintiff and finding that for the remaining redactions, no further disclosures are necessary. The court declines protection for four documents withheld in full "solely on the ground that they are drafts." "Defendant has failed to show that any portion of these documents, much less their entireties, were prepared to assist an agency decisionmaker in arriving at a decision and reflect a candid discussion of anything more weighty than word choice or grammatical considerations."
Elec. Privacy Info.Ctr. v. DHS, No. 11-945, 2012 WL 4044986 (D.D.C. Sept. 14, 2012) (Rothstein, J.). Holding: Granting defendant's motion for summary judgment but finding plaintiff eligible for and entitled to attorney's fees and costs. Threshold: As a preliminary matter, the court holds that documents shared with government contractors who assisted with the development and testing of detection systems were properly withheld under the consultant corollary theory. The court concludes that "documents at issue were intra-agency communications for Exemption 5 purposes." It notes that "in order to be excluded from the exemption, the contractors must assume a position that is 'necessarily adverse' to the government." Here, the contractors are "bound in contract to provide information and analysis to DHS."
Deliberative Process Privilege: The court finds that three documents were properly withheld under the deliberative process privilege. The parties agree that the documents are predecisional, but contest whether they are deliberative. The court examines each of three documents in turn and determines that they are indeed deliberative. It finds that an email "outlining and 'attaching options," as well as 'choices to be made'" is deliberative and part of the "'give and take' of the policy making process." The court likewise finds that minutes of a meeting between DHS officials and a contractor describing "options presented to DHS" and "possible deployment scenarios" are also deliberative. Finally, the court concludes that "briefing materials prepared by DHS in evaluating [the contractor's] proposal" are deliberative. The materials, which "contain deliberations about whether to proceed" and "the contractor's advice to the agency concerning the ongoing development of the prototype systems" are properly withheld under Exemption 5. Segregability: The court is "persuaded that DHS has disclosed all factual material that is not inextricably intertwined with deliberative portions of the withheld records."
Elec. Frontier Found. v. DOJ, No. 10-641, 2012 WL 3900737 (D.D.C. Sept. 10, 2012) (Walton, J.). Holding: Granting the defendant's motion for summary judgment on the withholdings, and granting the defendant's motion for summary judgment in part as to the segregability of the documents. Deliberative Process Privilege: DOJ's Vaughn submissions establish that "the documents currently in dispute were only exchanged between agency officials within the Executive Branch." "Because plaintiff has offered no contrary evidence rebutting the agency's Vaughn submissions, the Court concludes that the documents currently in dispute qualify as 'inter-agency or intra-agency' records within the meaning of ... Exemption 5."
The court rejects plaintiff's assertion that the deliberative process privilege cannot apply because the requested documents represent United States-European Union High Level Contact Group's ("HLCG") final negotiating positions. "[T]here is no indication that the agencies that participated in the HLCG negotiations... formally or expressly adopted the [HLCG's] negotiating positions in any publicly-available document or publication." Additionally, because the negotiating positions reflected in the documents "related to the non-binding HLCG principles[,]" they are "not comparable to...internal memoranda...[described in another court opinion] as precedential guidance in discharging [an agency's] regulatory duties." While the plaintiff argues that the "information lost its protected status because it was used by the [HLCG] team 'in its dealing with the public,'" the E.U. HLCG negotiators do not qualify as 'the public,' nor is there any indication that the withheld information was utilized by the agencies in their dealings with the public at large."
The court finds that the factual material contained in the documents was properly protected because it consists of facts "'assembled through an exercise of judgment'" or consists of "views and reactions" of authors. Further, the court finds that the briefing materials prepared for senior policy officials are both predecisional and deliberative in nature. While the plaintiff contends that the "senior policy officials were not being called upon to make decisions," the court notes that the "[ultimate responsibility] for adopting the principles" from the negotiations fell to the senior officials. The plaintiff "takes a restrictive view of the 'predecisional' requirement, one which would require the [defendant] to pinpoint a decision of the senior policy officials to which the briefing materials contributed. "To satisfy the predecisional element, the agency need only 'identify the decisionmakingprocess' to which the withheld documents contributed." Finally, while "the plaintiff may be correct that the briefing materials contain, among other things, summaries of the HLCG deliberations, the [defendant's] Vaughn submissions indicate that the summaries reveal the agency 'employees' deliberative process of selecting and presenting facts,' which required them to 'exercise  their judgment by anticipating what information these officials would need." "Because such material qualifies as deliberative, the plaintiff's challenge is meritless."
Hooker v. HHS, No. 11-1276, 2012 WL 3574061 (D.D.C. Aug. 21, 2012) (Jackson, J.). Holding: Denying, in part, defendants' motion for summary judgment as to the adequacy of its search for certain correspondence and ordering the release of additional segregable material withheld under Exemption 6; granting, in part, defendants motion for summary judgment as to adequacy of their search for certain other documents, and their withholdings under Exemptions 5 and 6; treating as conceded withholdings and redactions of four articles under the Copyright Act of 1976, where plaintiff failed to challenge them; and concluding defendants' properly released all reasonably segregable non-exempt information that was withheld pursuant to Exemption 5. Threshold: As a preliminary matter, the court holds that documents exchanged between CDC and a former CDC employee and co-author of several CDC manuscripts qualifies as "intra-agency memoranda" under Exemption 5. The court rejects plaintiff's contention that the former employee "was not sufficiently involved in CDC's research to qualify as a 'consultant' and therefore his communications with CDC were not intra-agency memoranda." To the contrary, the court notes that "the relevant inquiry is not whether the agency exercises employer-like control over the outside party or whether the party was directly involved in all aspects of the agency's decision-making process." Instead, "the dispositive question is whether the records submitted by the outside party 'played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done." Here, the court finds that certain evidence indicates that the former employee "played the same role in the agency's process of deliberation after his departure that he would have played had he remained: reviewing, revising, and finalizing the draft." Moreover, the court notes that "he was named as a CDC employee on a manuscript finalized and published after he left CDC." Additionally, the court finds that "he was not promoting his personal interests or those of his private employer, but that he was working to ensure 'the scientific and public health merit' of the published studies in which he was involved."
Deliberative process privilege:Based on its in camera review and defendants' submissions, the court holds that correspondence regarding the publication of a specific journal article is protected by the deliberative process privilege. As an initial matter, the court notes that "[t]he D.C. Circuit has found that where a plaintiff requests records of correspondence surrounding or leading up to an agency publication, the relevant agency decision for purposes of applying the deliberative process privilege is the decision to publish." As to plaintiff's argument that the documents are not predecisional because they contain the subsequent justifications for a 1999 agency decision, the court determines that "[h]aving chosen to focus [plaintiff's] FOIA inquiry on correspondence surrounding the agency's 2003 publication of the thimerosal manuscript, [he] cannot now point to an earlier agency decision in an attempt to argue that the withheld documents were actually post-decisional." The court also rejects plaintiff's assertion that the documents "contained factual as opposed to deliberative material, in particular, the fact that certain manuscripts were not accepted for publication in specific journals." The court finds that "the draft manuscript referenced by plaintiff – though initially rejected for publication in certain journals – was never finalized or approved as a reflection of agency policy in its draft form, though a subsequent revision of the manuscript was accepted for publication in Pediatrics." The court determines that "the withheld documents can best be described as an ongoing, collaborative dialogue about the manuscript" and finds that "revealing the internal CDC discussions and the recommendations of CDC employees and consultants about which research findings and data to include would undermine the purposes to be served by the exemption."
Hall v. CIA, No. 04-814, 2012 WL 3143839 (D.D.C. Aug. 3, 2012) (Lamberth, J.). Holding: Granting, in part, CIA's renewed motion for summary judgment on the basis that its searches for certain responsive records were adequate, that certain withholdings under Exemptions 1, 3, 5 and 6 were proper, and that it released all reasonably segregable material; ordering CIA to conduct searches for other records; concluding that CIA must take affirmative steps with respect to certain referred records; ordering release of certain information withheld under Exemption 6; determining DOD must further justify certain Exemption 3 withholdings; and denying plaintiffs' requests for discovery and for in camera review. The court concludes that the CIA has now supported its withholdings under the deliberative process privilege. For one, the court grants summary judgment to CIA with regard to two documents withheld under the deliberative process privilege for which plaintiffs did not respond to CIA's legal arguments or dispute its factual assertions. With regard to "emails, memoranda, and handwritten notes by Agency officers regarding the calculation of fee estimates for processing" one of plaintiffs' FOIA requests, the court find that "[b]ecause the CIA has adequately explained . . . that the redacted information was 'pre-decisional,' that the information concerned recommendations and opinions on legal and policy matters and that the recommendations were never adopted," summary judgment is appropriate. The court also determines that CIA properly justified its assertion of the deliberative process privilege for a document over thirty years old where the agency adequately demonstrated to the court that "the withheld information concerns deliberations, and not the results of deliberations, as the documents show no evidence that the policy recommendations were ever adopted." Additionally, the court grants summary judgment to the CIA regarding its attorney-client privilege withholdings where plaintiffs' failed to contest the CIA's legal arguments or factual assertions.
Soghoian v. DOJ, No. 11-1080, 2012 WL 3090309 (D.D.C. July 31, 2012) (Jackson, J.). Holding: Granting defendants' motion for summary judgment on the basis that they properly withheld certain information pursuant to Exemptions 5 and 7(E), released all reasonably segregable non-exempt information, and plaintiff conceded the adequacy of DOJ's search. The court holds that defendants properly asserted the attorney work-product privilege to protect various records including "internal presentations and discussions among DOJ attorneys that analyze the legal precedents and statutes applicable to the various methods of obtaining evidence from cell phones themselves and from phone carriers." As to plaintiff's contention that DOJ has not pointed to "the specific litigation for which the withheld documents were prepared," the court notes that "the D.C. Circuit has not construed the privilege so narrowly as to protect only work product related to specific cases currently in litigation." The court determines that the application of the attorney work-product privilege is appropriate because "[h]ere, the legal strategies and issues addressed in the withheld documents are protected because they relate to foreseeable litigation arising out of the government's criminal investigations." Moreover, the court finds that "[t]he availability of the privilege is even clearer where the documents relate to specific litigation," noting that two documents "are properly excluded under the work product doctrine because they include the attorney's mental impressions of sealed cases." Segregability:The court further finds, due to the nature of the records as protected work product, it "does not need to consider whether . . . [they] are properly severable."
The court holds that defendants properly invoked the deliberative process privilege to withhold draft material related to a policy manual, draft language on guidance for obtaining search warrants, and draft material giving guidance regarding obtaining location information from phone carriers. For one, the court finds that these documents are "pre-decisional because they were drafts that had not yet been adopted as agency policy at the time they were written." Further, the court concludes that records are deliberative because "they were 'part of the agency give-and-take of the deliberative process by which the decision itself is made.'" Segregability:The court notes that "plaintiff's assertion that DOJ has withheld purely factual information does not compel the release of all 'purely factual' information within the document." Based on itsin camera review, the court "is satisfied that . . . disclosure [of the records] would improperly expose the decisionmaking process and that there are no segregable portions of the documents."
Pub.Emp's for Envtl. Resp. v. Off.of Sci. & Tech. Pol'y, No. 11-1518, 2012 WL 3126778 (D.D.C. July 30, 2012) (Leon, J.). Holding: Granting defendant's motion for summary judgment on the basis that its withholdings under Exemptions 4 and 5 were appropriate, and that it released all reasonably segregable material. The court holds that OSTP properly asserted the deliberative process privilege to protect "'draft interagency comments, opinions and impressions of Executive Branch officials on draft documents, perceived priorities and issues for discussion, proposed policies and processes for consideration, and tentative concerns.'" The court finds that OSTP's declaration made it clear that "all of this information is predecisional because it was either 'provided to [Agricultural Biotech] Working Group[, an interagency group which is convened by OSTP,] for their consideration and input on the approach it proposed' or was 'subject to further editing . . . [and] in draft form, or describe[d] tentative comments on draft submissions.'" Although plaintiff argues that OSTP has failed to identify the "specific decisions to which the withheld materials are related," the court finds that "the absence of such specific information is not fatal to OSTP's privilege claims, especially given the Working Group's advisory nature and the likelihood that it would deliberate and examine many proposals without arriving at specific decisions for each proposal." As to plaintiff's assertion that "a particular document's name could not be deliberative," the court determines that "[t]he agency's Vaughn index explains that these agenda topics actually identify proposals and processes" that are considered by the Working Group. The court concludes that "such information is properly considered deliberative because it would reveal the specifics of how the Working Group makes decisions on a particular issue." With respect to plaintiff's challenge to "the Working Group's ability to employ the deliberative process privilege at all" in light of the fact that it lacks authority over federal agencies, the court finds that "non-decision-makers can take part in the decision making process either by providing recommendations or by debating at a lower level about what course of action to recommend." As such, the court concludes that "[t]here is no doubt that in the Working Group's coordinating role 'to share information related to the science, technology, and regulation of agricultural biotechnologies with staff of relevant Federal agencies,' . . . it may certainly participate in the deliberative process." Lastly, the court finds that OSTP has shown that disclosure of the information "could 'have a chilling effect on future interagency discussions over important and sensitive science and technology policy issues.'"
Judicial Watch, Inc. v. DHS, No. 11-606, 2012 WL 3065390 (D.D.C. July 30, 2012) (Kessler,J.). Holding: Granting DHS's motion for summary judgment on the basis that its withholdings pursuant to the deliberative process privilege were proper, and that it released all reasonably segregable material. The court concludes that DHS properly withheld certain material pursuant to the deliberative process privilege where its submissions "specifically explain the reasons that [the twenty] document[s] at issue [are] predecisional and deliberative and why disclosure would harm the decision-making process." Moreover, the court notes that "[t]he two Vaughn Indices explain with reasonable detail the agency decision or policy to which the documents contributed and the reason the documents are properly considered deliberative." The court notes that "[g]iven the presumption of good faith to be accorded to these submissions, nothing more is required of DHS." The court rejects plaintiff's contention that six of the records "concern[ing] public relations" should be disclosed. To the contrary, the court finds that "[e]ven if the documents are created after the underlying policy they discuss is finalized, 'these documents are generated as part of a continuous process of agency decision making, viz., how to respond to on-going inquiries." Additionally, the court determines that "the fear of public scrutiny may affect an agency's consideration of whether to provide a statement to a television news program just as it may affect consideration of the underlying substantive policy." The court concludes that these records "are predecisional to the agency's determination of how to present its policy in the press." With respect to plaintiff's argument that two other documents "'appear to be merely lists of questions or primarily factual material,'" the court finds that plaintiff "simply ignores applicable case law in this District that draft questions prepared for a presentation are protected by the deliberative process privilege." Moreover, the court determines that plaintiff "is wrong when it states that the records 'appear to be . . . primarily factual material'" because "[t]he Vaughn Index clearly states that one record contains draft questions for use in a presentation and the other contains draft language and edits for a memorandum."
Judicial Watch, Inc. v. U.S. Dep't of State, No. 11-1152, 2012 WL 2861821 (D.D.C. July12, 2012) (Kay, Mag.). Holding: Granting the State Department's motion for summary judgment on the basis that it properly invoked Exemptions 5 and 6 to withhold certain information, and released all reasonably segregable information. The court holds that the State Department properly invoked the deliberative process privilege to redact the names of potential attendees to an upcoming meeting from emails in which "[m]ultiple agency representatives offer recommendations [as to possible invitees] on behalf of their agencies or their Canadian counterparts." As a preliminary matter, the court notes that "the parties agree that the emails are pre-decisional," but disagree as to "whether the withheld names represent any deliberative act by the Department of State." Here, the court finds that "the withheld names are not purely factual information because the agencies are in the process of deciding who will attend the meeting." The court observes that "[t]he emails do not merely state a confirmed list of attendees, but rather a series of views and opinions on the potential attendees." As such, "the presence or absence of a name conveys an agency or employee's opinion about a potential attendee's value to the meeting." Moreover, the court finds that "[d]isclosure of potential invitees would also have a chilling effect on the sort of interagency discussions taking place in these emails," "likely hav[ing] the effect of forcing agency employees to question whether to express opinions about who should attend a meeting."
Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July3, 2012) (Lamberth, J.). Holding: Concluding that plaintiff exhausted his administrative remedies with regard to fees assessed by the FBI; and granting defendant's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 1, 3, 5, 7(C), 7(D), 7(E) and 7(F). Noting that plaintiff offered no legal objections, the court concludes that defendant properly withheld draft telegrams concerning plaintiff's extradition under the deliberative process privilege. The court finds that the record is "predecisional because it was written prior to plaintiff's extradition, . . . and deliberative because it 'makes recommendations or expresses opinions on legal or policy matters,' namely whether and how to extradite plaintiff to the United States."
Island Film, S.A. v. U.S. Dep't of the Treasury, No. 08-286, 2012 WL 2389990 (D.D.C. June26, 2012) (Roberts, J.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 4, 5, 6, 7(C) and 7(D) and conducted a reasonable search, the adequacy of which was not challenged by plaintiff; ordering defendant to provide additional submissions to justify withholding information for which it invoked Exemption 2, which is precluded by Milner, and to support certain withholdings under Exemptions 7(D) and 7(E); and directing defendant to provide segregbility analysis for certain specific documents withheld in full, but determining that defendant released all reasonably segregable portions from the remaining documents. The court holds that Treasury properly invoked the deliberative process privilege to protect "employees' internal discussions regarding a pending licensing matter, internal administrative markings on documents, internal notes, and draft correspondence and [other] documents [that were] . . . part of OFAC's deliberative process." The court finds that "[t]he description of the withheld records provided by the Vaughn index and agency affidavit sufficiently support the conclusion that the records were made to facilitate the agency's policy determination about how to respond to license applications." Moreover, the court determines that "plaintiff has cited no contradictory evidence in the record, or provided any evidence of bad faith, to undermine the agency's assessment that disclosure of the withheld records would inhibit candor in future agency deliberations."
Nat'l Immigr.Proj.of the Nat'l Laws. Guild v. DHS, No. 11-3235, 2012 WL 2371459 (S.D.N.Y. June25, 2012) (Rakoff,J.). Holding: Concluding that defendant's application of the deliberative process, attorney work-product, and attorney-client privileges is too broad; ordering the government to reexamine documents that the court has not reviewed in camera and those that defendant has not yet produced using the principles outlined in the instant decision; directing, in the absence of further claims of exemption, that defendants disclose the portions of documents for which defendant invoked Exemption 5 and which were reviewed in camera. After conducting an in camera review of certain documents for which DHS asserted Exemption 5, the court concludes that DHS improperly asserted the deliberative process privilege to withhold internal deliberations related to the agency's response to a specific case. The court finds that the quotations contained in the withheld documents "reinforce the [agency's] Vaughn index's own suggestion that the documents in question contain only 'opinions and interpretations which embody the agency's effective law and policy,' i.e., determinations of how ICE applies its general policies in specific cases, which are not within the protection of the deliberative-process privilege." The court rejects DHS's argument that the deliberative process privilege should apply because "the documents at issue here contain only advice from lawyers to those making decisions that pertain to, but may not fully determine, whether to return aliens and what status to attribute to them." To the contrary, the court finds that "[t]his argument . . . cannot overcome the fact that the decisions described in the documents at issue, regardless of who has ultimate authority to make them, are not the types of decision to which the deliberative-process privilege applies, i.e., decisions about the formulation, rather than the application of policies." The court finds that "'[o]pinion[s] about the applicability of existing policy to a certain state of facts' provide important insights into how those tasked with interpreting a policy, such as the directives identified by ICE, understand its often ambiguous terms" and notes that "courts have compelled [the] disclosure [of such materials] regardless of the decision-making authority of the officials who author them." With respect to defendant's claim that "the deliberative process privilege should apply because the documents at issue are informal, rather than formal, articulations of policy," the court finds that "[t]he Government's proposed distinction . . . would have the absurd effect of giving the agencies greater protection against FOIA disclosure when they expound their working laws haphazardly than when they follow written directives." The court rejects defendant's argument because it finds that "the Government's proposed distinction promotes disorganized decision-making and finds no support in the cases on which the Government relies." Additionally, the court dismisses defendant's assertion that "the 'release of . . . information would adversely impact the free flow of advice and information, reveal the reasoning and deliberative process of agency officials, and therefore, result in a chilling effect on intra-agency communications.'" Rather, the court holds that "[w]ithout some account – not here proffered – of how disclosure will adversely affect the formulation of policy, rather than the process of interpretation and exposition which constitutes an 'agency's effective law and policy,' ICE cannot invoke the deliberative-process privilege with respect to the documents in question."
Nat'l Immigr.Proj.of the Nat'l Laws. Guild v. DHS, No. 11-3235, 2012 WL 2371459 (S.D.N.Y. June25, 2012) (Rakoff,J.). Holding: Concluding that defendant's application of the deliberative process, attorney work-product, and attorney-client privileges is too broad; ordering the government to reexamine documents that the court has not reviewed in camera and those that defendant has not yet produced using the principles outlined in the instant decision; directing, in the absence of further claims of exemption, that defendants disclose the portions of documents for which defendant invoked Exemption 5 and which were reviewed in camera. Based on its in camera review, the court concludes that DHS has not supported its application of the attorney work-product privilege. The court finds that "many of the Government's invocations of the work-product doctrine do not specify how the documents in question relate to any ongoing litigation" and that other Vaughn Index entries fail to explain why "discussions of how to facilitate a deported alien's return [relate to] discussions of the agency's strategy in ongoing removal proceedings." The court finds that "if the Government routinely applies its 'process' or 'policy' to deported aliens who prevail on appeal, then such applications should occur independently of, and certain not 'because of,' the occurrence of further proceedings in an alien's case." The court rejects defendant's argument that "the work-product doctrine should apply to the communications at issue because a deported alien's return necessarily occurs within the context of a removal proceeding." For one, the court concludes that "[t]he mere fact that two occurrences share a common cause says nothing about any causal relationship between the two." Additionally, the court determines that "upon analyzing the relationship between the return of an alien, the restoration of her status, and the continuation of her removal proceeding before the [Executive Office for Immigration Review], the Court finds that the relationship is merely coincidental." Rather, the court observes that nowhere in ICE's directive regarding a removed alien's return post-appeal "does ICE indicate that its attorneys' 'legal theories' and 'strateg[ies]' influence the decision to return an alien." The court concludes that "ICE cannot invoke the workproduct privilege with respect to communications that merely describe the implementation of its policy."
Based on its in camera review, the court concludes that "the Government cannot invoke the attorney-client privilege because it has failed to identify any confidential information 'concerning the Agency' that ICE officials communicated." Rather, the court finds that with respect to the communications between DHS's Office of the Principal Legal Advisor and its Offices of the Chief Counsel, "ICE merely applies its policies and its interpretations of applicable statutes to requests supplied by third parties." The court rejects defendant's argument that "the documents in question[ ] contain only informal analyses." Rather, the court determines that "an attorney's authority and formality are irrelevant to the determination of whether a client communicates confidential information." Furthermore, the court finds that "even a showing that ICE kept documents confidential by restricting their distribution cannot relieve the Government of its burden of showing that the documents initially contained confidential information." As to defendant's assertion that "it has already disclosed the facts that outsiders communicated to ICE," the court finds that "such disclosure does not discharge the Government's obligation." Rather, "the Government must also reveal ICE's analyses of how its policies – which are not confidential information – applied to those facts."
Zander v. DOJ, No. 10-2000, 2012 WL 2336244 (D.D.C. June 20, 2012) (Bates,J.). Holding: Accepting the magistrate's recommendation regarding the adequacy of BOP's search as well as the judge's determination that portions of plaintiff's FOIA requests should be denied based on his failure to exhaust administrative remedies; rejecting plaintiff's objection regarding provision of a Vaughn Index; rejecting magistrate's recommendation regarding disclosure of a video, and concluding that BOP properly withheld it under Exemption 7(F); and accepting, with one modification, magistrate's determination that certain documents which the judge reviewed in camera should be disclosed. Noting that "not much really hangs on the outcome of defendants' objections . . . because the documents (as redacted) hardly contain much information at all," the court accepts the magistrate's recommendation that letters from BOP employees seeking DOJ representation in connection with a lawsuit brought by plaintiff and accompanying signed forms are not covered by the attorney client privilege and must be released. The court concludes that "the documents must be disclosed to the extent the information has already been made public, with proper redactions for other nonpublic material." The court also accepts the magistrate's recommendation regarding disclosure of two e-mail communications between DOJ attorneys and BOP employees. The court concludes that "the two e-mails do not fall under attorney work product doctrine because the e-mails are communications to and from clients regarding litigation, rather than actual preparation by attorneys for litigation (or anticipated litigation)." Although "[t]he documents at issue here relate to litigation – [specifically plaintiff's] case in North Carolina -- . . . in the Court's view, after having reviewed the documents it would not be fair to say they constitute 'preparation' for litigation, as they merely summarize the case very generally in lay terms and instruct BOP employees on how to receive representation in the case." Additionally, the court holds that "[s]uch communications do fall under the broader attorney-client privilege, but they are not the 'work product' of an attorney contemplated for protection by that doctrine." Noting that the magistrate in his review "properly applied the [D.C. Circuit's rule] in Mead Data[, Inc. v. U.S. Department of Air Force] . . . that the information should only be withheld if it is confidential," the court accepts, with one exception, the magistrate's assessment recommending disclosure of portions of the e-mails. The court holds that defendant may redact certain information that is "not publicly available" from one particular e-mail.
Sensor Sys.Support, Inc. v. FAA, No. 10-262, 2012 U.S. Dist. LEXIS 66061 (D.N.H. May11, 2012) (Barbadoro, J.). Holding: Granting the FAA's motion for summary judgment with respect to twenty-five records for which the agency asserted Exemption 5; ordering the FAA to submit one record to the court for in camera inspection; and denying, without prejudice, plaintiff's request for attorney's fees. The court concludes that, with one exception, the FAA properly asserted the deliberative process privilege to withhold "email exchanges pertaining to implementation of the agency's December 2007 agreement with the Government of Bermuda" involving upgrading an airport radar system. As an preliminary matter, the court rejects plaintiff's assertion that the FAA' s submissions "are suspect on their faces because the FAA's incremental release of previously withheld documents demonstrates a lack of good faith." Rather, the court observes that "[c]ourts have 'emphatically reject[ed]' the notion that an agency's disclosure of documents that it had previously withheld renders its affidavits suspect.'" In terms of the withheld emails, the court finds that the FAA's "description clearly identifies the creation of a business development office in Bermuda as the contemplated agency decision" and explains how the documents express "'the mental processes of the agency in considering alternative course of action prior to settling on a final plan,' . . . as opposed to the agency's official policy on the subject." However, the court concludes that, with respect to one document, the FAA has not provided sufficient information to allow the court "to determine whether the email predated any sort of contemplated agency decision or action," but rather finds that the agency's "descriptions of the document merely suggest that the redactions concern a subordinate's account of past events to his superior." Because this is the second time that the agency has failed to establish that the deliberative process privilege applies, the court orders the FAA to submit the record for in camera review.
The court concludes that the attorney-client privilege was properly applied to an email which "was sent [by an FAA employee] to an agency attorney for the purpose of obtaining legal advice" and was not shared with third parties.
Nat'l Sec. Archive v. CIA, No. 11-724, 2012 WL 1630525 (D.D.C. May10, 2012) (Kessler,J.). Holding: Granting the CIA's motion for summary judgment on the basis that it properly invoked Exemption 5 to withhold in full a draft volume documenting the agency's internal investigations into the Bay of Pigs Operation. The court holds that the CIA properly withheld in full, pursuant to the deliberative process privilege, Volume V of the CIA's history of Bay of Pigs Operation. Citing Pfeiffer v. CIA, a 1989 decision by another D.C.district court that concluded that Volume V was properly withheld under Exemption 5, the court notes that it "finds no reason to depart from [the other district court's earlier] sound conclusion." For one, the court determines that "Volume V was undoubtedly 'generated before the adoption of an agency policy,' and is therefore predecisional." The court finds that "Volume V represents only the first step in a multi-step process of creating an official CIA history," and notes that it "did not even pass through the first stage of a multilayer review process." Further, "Volume V represents a proposal by a subordinate member of the [agency's] history staff – a proposal which was rejected by the Chief Historian due to significant deficiencies" and, additionally, "was rejected for inclusion in the final publication and remained a draft." Accordingly, the court concludes that "Volume V 'reflect[s] the personal opinions of the writer rather than the policy of the agency.'" Additionally, the court finds that "the CIA has made a strong and specific showing that disclosure of Volume V would harm the deliberative process" by possibly "caus[ing] staff historians not 'to reach – or even propose – judgments that may be critical of the Agency's performance or otherwise unpopular within the Agency.'" In addition, "[d]isclosure of a draft history would risk public release of inaccurate historical information" and "'would have a chilling effect on CIA's current historians who would henceforth be inhibited from trying out innovative, unorthodox or unpopular interpretations in a draft manuscript.'" Contrary to plaintiff's arguments, the court finds that, in this case, "the passage of time has not affected the rationale for invoking Exemption 5." The court concludes that "[g]iven the fact that, as an agency, the CIA operates in secrecy and faces relatively little public scrutiny in its operations for that reason, and given the importance of the activities and operations it undertakes, it is particularly important that in-house historians – who do have the facts – feel free to present their views, theories, and critiques of the Agency's actions."
Metro. St. Louis Sewer Dist. v. EPA, No. 10-2103, 2012 U.S. Dist. LEXIS 27902 (E.D. Mo. Mar.2, 2012) (Jackson,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly asserted the deliberative process privilege to withhold certain information, and that it properly released all reasonably segregable material. The court holds that the EPA properly asserted the deliberative process privilege to withhold certain information, including email communications, "press releases, talking points and 'Q & A,'" drafts, and briefing materials. With respect to emails that post-date October 29, 2009, the date on which the EPA announced new water quality standards, the court finds that the deliberative process privilege is applicable. The court finds that the emails "address internal agency deliberations about how to respond to a request for a change in policy from a state agency and thus are part of a predecisional process, albeit one that is separate from that leading up to the October 2009 decision" and, additionally, determines that "disclosure of the contents of [certain] February 2010 emails would reveal information about the course of deliberations leading up to the October 29, 2009, decision." The court also concludes that emails created on the same date as EPA's water quality standard determination qualify for the protection under the deliberative process privilege because they contain "deliberations about the best means to communicate the [agency's] final decision." Similarly, the court concludes that the FDA has established that certain "press-release records... also have deliberative, predecisional content." The court rejects plaintiff's argument that the "communications from superiors to subordinates" are not deliberative in nature. Instead, the court finds that "[t]he fact that superiors are more likely to have policy-making authority does not establish that all communications from superiors to subordinates consist solely of final opinions" and declines to "say, categorically, that all the communications that originated with superiors fall outside the deliberative process exemption." As to plaintiff's argument that certain factual material was improperly withheld from an email entitled "[Metropolitan Sewer District] facts," the court finds that "[t]he title alone is not sufficient to overcome the presumption of good faith which is afforded to the agency's justification for the exemption." As to any factual material which may have been adopted in the EPA's final fact sheet, the court determines that "[a] document does not become nondeliberative if facts are included in the deliberations." With respect to other documents containing revisions, the court finds that "[d]rafts and revisions of text may expose the development of agency thinking before the final product is released and thus can be deliberative." The court also accepts the EPA's argument that the disclosure of maps of St. Louis and the Mississippi River containing a selection of manmade and natural features, which "were prepared prior to briefing officials who were responsible for making the water quality standard determination," "would reveal the deliberative process."
Roman v. NSA, Nos. 09-2947, 09-4281, 09-3344, 09-2504 & 09-5633, 2012 WL 569747 (E.D.N.Y. Feb. 22, 2012) (Bianco,J.). Holding: Granting summary judgment to the defendants based on the adequacy of their searches and the propriety of NSA's withholdings under Exemption 3, and the CIA's withholdings pursuant to Exemptions 3 and 5. The court concludes that the CIA properly invoked the deliberative process privilege to protect "information concerning a directorate's predecisional responses to a [Public Information Programs Division] tasking and comments about whether to withhold documents" in connection with plaintiff's previous request because those discussions are "of a deliberative nature."
Weigel Broad. Co. v. FCC, No. 11-236, 2012 U.S. Dist. LEXIS 131797 (N.D. Ill. Feb.17, 2012) (Guzman, J.). Holding: Granting, in part, the FCC's motion for summary judgment on the basis that it properly withheld certain material pursuant to Exemption 5; but ordering that the FCC produce for in camera review two documents, for which it did not provide sufficient detail. The court concludes that the FCC properly asserted the deliberative process privilege to withhold certain "draft decisions and orders on plaintiff's applications [to transfer its broadcasting licenses], internal memoranda and emails discussing the agency's possible decisions on the applications, its procedures with respect to the possible decisions and its response to an inquiry about the status of the review." The court finds that "[i]t is clear from the descriptions and dates of these documents [contained in the FCC's Vaughn Index] that they reflect internal agency discussions about what action, if any, to take on plaintiff's applications that occurred before the applications were withdrawn in September 2009."
Abuhouran v. U.S. State Dep't, No. 11-271, 2012 WL 473241 (D.D.C. Feb. 14, 2012) (Huvelle,J.). Holding: Dismissing the amended complaint brought by plaintiff's sister for lack of standing under Federal Rule of Civil Procedure 12(b)(1); treating as conceded defendants' claims of exemption, the court concludes that the defendants properly withheld information pursuant to Exemptions 1, 5, 6, 7(A) and 7(C) and that the State Department released all reasonably segregable information; and denying plaintiff's request for costs and fees as he is not a prevailing party. The court determines that the Department of State properly invoked Exemption 5 to protect "'information . . . that details legal advice given by attorneys of the Office of the [Le]gal Adviser . . . to officials in offices in the Department and at embassies abroad concerning the transport of an accused felon to the United States.'
Sensor Sys.Support, Inc. v. FAA, No. 10-262, 2012 WL 424376 (D.N.H. Feb.9, 2012) (Barbadoro, J.). Holding: Granting, in part, summary judgment to FAA with respect to certain withholdings under the deliberative process privilege, and Exemptions 6 and 7(C); denying, in part, the FAA's motion for summary judgment as to other redactions under the deliberative process privilege as well as withholdings made pursuant to the attorney-client privilege, and ordering the FAA to supplement its Vaughn index or declaration with respect to those records or to submit them for in camera review; and declining to exercise its discretion to make an interim award of attorney's fees to plaintiff Deliberative process privilege: The court concludes that the FAA has adequately justified its assertion of the deliberative process privilege to withhold portions of draft responses to a congressional inquiry and discussions regarding the proposed responses. At the outset, the court notes that the draft responses and associated discussion "are predecisional, as they predated the agency's final response and were prepared to assist the agency official charged with responding to the inquiry." As to whether the draft responses and the employees' comments on the draft are deliberative, the court finds that the records "meet the First Circuit's 'deliberative document' test" because they "'formed an essential link in a specified consultative process,'" "reflect opinions of individual employees as opposed to the official position of the agency," and "release of the redacted information would inaccurately reflect the views of the agency, as it includes advice, recommendations, and conclusions not incorporated into the agency's final response." The court rejects plaintiff's "argument that the deliberative process privilege does not attach to the draft responses because responding to a congressional inquiry involves neither the agency's decisional nor its policymaking function." Rather, the court determines that "[t]he FAA had to respond to allegations [plaintiff] raised against the agency in the inquiry" and "the agency's response to that inquiry plainly involved a deliberative function entrusted to the agency." As such, the court finds that "[t]he fact that the response is not a formal act of agency policymaking is irrelevant."
However, the court finds that the FAA did not adequately justify its deliberative process privilege claim for "redactions in 29 email exchanges regarding implementation of the agency's December 2007 agreement with the Government of Bermuda." As an initial matter, the court notes that although the emails post-date the FAA's agreement with the Bermudan government, they still may be considered predecisional since "[t]he agency clearly had to make subsequent decisions regarding implementation of the agreement." Here, though, the court finds that the FAA did not provide adequate information for the court "to determine whether the email exchange predated any sort of contemplated agency decision or action regarding the project." Accordingly, the court directs the FAA to supplement its Vaughn index or affidavit with respect to these records, or to submit them for in camera review.
Attorney-client privilege: With regard to "email exchanges between [an FAA manager] and FAA legal counsel," the court concludes that the agency "has neglected to supply the court with sufficient facts, either in its index or in the [agency's] affidavit, to permit a conclusion that the attorney-client privilege applies." Noting that an agency cannot assume that the confidentiality requirement of the attorney-client privilege is satisfied "'merely because the documents are communications between a client and attorney,'" the court finds that "[d]escriptions of the eight pages with respect to which the FAA claims the privilege give no indication as to the confidentiality of the information on which they are based." The court orders the FAA to provide a supplemental Vaughn index or declaration, or to submit the documents for in camera inspection.
Nat'l Immigr.Project of the Nat'l Law.Guild v. DHS, No. 11-3235, 2012 WL 375515 (S.D.N.Y. Feb.7, 2012) (Rakoff, J.). Holding: Granting, in part, plaintiff's motion for summary judgment and ordering defendants to disclose factual portions of an email chain that contain statements of agency policy; and, in all other respects, denying plaintiff's motion for summary judgment, and granting defendant's cross-motion for summary judgment.
Attorney work-product privileges: Upon its review of the emails, the court determines that "they do contain, in part, . . . core work-product," for which plaintiff's arguments have "no relevance," but finds that "there are also factual recitations about existing practices that are independent of, and easily severable from, the core work-product." Accordingly, the court "limit[s] its discussion to the question of whether these factual contents are protected from disclosure." The court observes that none of the sources identified by defendants as the factual basis for the government's representations in Nken actually provide that support, and finds that "the email chain (as reviewed by the Court in camera) evidences an attempt to cobble together a factual basis for making the representation the OSG made to the [Supreme] Court." The court determines that "[g]iven the absence of public disclosure of . . . [the] practices [of Customs and Border Protection, Immigration and Customs Enforcement, and Citizenship and Immigration Services] and the Government's assertion that it has a adopted a policy, such assertions must amount to a statement of policy" and therefore "the OSG's representation – which it made in a brief to this nation's highest court – constituted 'unilateral testimonial use' of the email chain at issue in this case and is not protected by work-product privilege."
Attorney-client privilege: As to defendants' reliance on the attorney-client privilege for the email chain, the court finds that "[t]he OSG disclosed the existence of a purported policy [through its 'unilateral testimonial use' of the factual contents of the emails] the details of which do not appear to reside anywhere outside the email chain." Accordingly, the court concludes that defendants have waived the attorney-client privilege with respect to the factual portions of the emails because "[h]aving chosen to assert the existence of a previously undisclosed policy, the OSG cannot now claim that the attorney-client privilege protects the factual details on which it relied when it made that assertion." "Independently, moreover, the Court further finds that no attorney client privilege attached" here because "to the extent that the OSG's client agencies described an existing but otherwise unknown policy to the OSG, those agencies had a duty under FOIA to make statements of policy available" and therefore "FOIA barred those agencies from intending to keep statements of their policy confidential."
Deliberative process privilege: With regard to defendant's deliberative process privilege claim, the court declines to adopt the government's argument that was based on OSG's statutory authority to decide how to present cases to the Supreme Court.
Tarzia v. Clinton, No. 10-5654, 2012 WL 335668 (S.D.N.Y. Jan.30, 2012) (Maas,Mag.) (decision& order). Holding: Granting, in part, defendant's motion for summary judgment with respect to withholdings under Exemptions 1 and 5 and certain aspects of its search; and denying, in part, defendant's motion for summary judgment with respect to other aspects of its search, and on the issue of segregability for a document protected by the deliberative process privilege. With respect to an email exchange for which the Department of State asserted the deliberative process privilege, the court holds that to the extent that it "consists of 'a candid discussion' between or among government officials regarding the 'plausibility and weight to be given' certain factual reports, the information was properly withheld under Exemption 5." The court notes that "[s]uch a discussion is clearly deliberative, and it is predecisional because it was relied upon by the drafter of the Report."
Judicial Watch, Inc. v. DHS, No. 11-604, 2012 WL 251914 (D.D.C. Jan.27, 2012) (Kollar-Kotelly,J.). Holding: Granting, in part, DHS's motion for summary judgment with respect to information contained in spreadsheets for which it claimed the attorney work-product privilege; denying, in part, DHS's motion for summary judgment with regard to the remaining records; directing DHS to provide additional information to support certain withholdings under the attorney-client, attorney work-product, and deliberative process privileges and to demonstrate that it used the correct segregability standard with respect to factual material withheld under the deliberative process privilege. The court denies DHS's motion for summary judgment insofar as it seeks a ruling that certain documents were properly protected by the attorney-client privilege. For one, the court determines that "DHS's submissions fail to provide any basis . . . to find that the confidentiality of the communications at issue has been maintained." The court notes that "DHS must adduce competent evidence establishing 'confidentiality both at the time of the communication and maintained since.'" Additionally, the court finds that "DHS's Vaughn Index simply parrots selected elements of the attorney-client privilege" and notes that "[e]ven when situating these descriptions within the context of DHS's partial production, 'the descriptions of the documents are so brief and of such a general nature that they fail to give the court any basis for determining whether the privilege was properly invoked.'" The court provides DHS with "a further and final opportunity to establish the applicability of the attorney-client privilege to the information withheld from [plaintiff]."
With respect to "three spreadsheets relating to immigration cases handled by [Office of Chief Counsel (OCC)] Houston," the court determines that "DHS has proffered a sufficient factual basis . . . to conclude that, in light of the nature of the spreadsheets and the factual situation in this case, the information withheld can 'fairly be said to have been prepared or obtained because of the prospect of litigation'" and therefore is protected by the attorney work-product privilege. As to plaintiff's contention that "the information was not 'prepared in anticipation of litigation'" since "the information in the spreadsheets was gathered to decide whether to terminate litigation," the court determines that this "argument lacks merit" because "[m]aterial may still be said to be prepared 'in anticipation of litigation' even when an attorney is deciding whether or not to pursue a case." Further, the court finds that "DHS has satisfied its burden of showing that the information was prepared in anticipation of the pending and reasonably foreseeable immigration cases handled by OCC Houston." The court also rejects plaintiff's argument that "DHS 'has failed to demonstrate that the information contained in these documents has not been shared with third parties.'" The court notes that, here, "the burden lies with [plaintiff] to establish that DHS has waived the protections of the work product doctrine" "because, in contrast to the attorney-client privilege, the proponent of the work product doctrine does not bear the burden on proving non-waiver." Moreover, the court concludes that plaintiff has failed to show that DHS "disclosed work product to a third party under circumstances 'inconsistent with the maintenance of secrecy from the disclosing party's adversary,'" offering "unadorned speculation" instead.
With regard to information contained in memoranda and other communications for which DHS claimed the attorney work-product privilege, the court concludes that "DHS's evidentiary showing is so generalized and non-specific as to these [materials] that it fails to satisfy the Court that the work product doctrine has been properly invoked as a basis for non-disclosure." Although DHS grouped the documents into categories, the court finds that it "fail[ed] to correlate these categories to specific records identified in its Vaughn Index" and observes that some of the descriptions were too generic. The court grants DHS an additional opportunity to supplement the record in order to support its attorney work-product claims.
The court concludes that DHS failed to establish that the factual material in certain documents was covered by the deliberative process privilege. The court finds that DHS's "empty invocation of the segregability standard, which DHS never couples with a more detailed representation relating to specific records," is not sufficient to establish that it disclosed all reasonably segregable, nonexempt material. The court finds that "[w]here DHS has withheld factual information under the deliberative process privilege, the Court requires a more nuanced explanation as to why the information is inextricable from deliberative material." In addition, "the Court agrees with [plaintiff] 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" and notes that "[o]ftentimes, the descriptions are so generic and non-specific that, even when considered alongside DHS's partial production, the Court cannot meaningfully assess whether the information withheld is predecisional and deliberative."
In the interest of limiting future areas of dispute, the court responds to three issues raised by plaintiff concerning the application of the deliberative process privilege. With respect to plaintiff's assertion that "'the deliberative process privilege is a qualified privilege and can be overcome by a showing of sufficient need,'" the court finds that "the relevant question in [the FOIA] context is whether the information subject to the [deliberative process] privilege claim would 'normally' or 'routinely' be disclosed in private litigation." Second, the court notes that plaintiff "fails to recognize that even documents dated after a decision has been made may still be eligible for protection under the deliberative process privilege" because "documents dated after one decision has been made 'may still be pre-decisional and deliberative with respect to other, non-final agency policies.'" Lastly, the court declines to "inquire whether the disclosure of specific information would harm the interests animating the deliberative process privilege," noting that "the scope of this Court's inquiry is properly confined to asking whether DHS has satisfied its burden of showing the applicability of the privilege."
Morales v. Pension Benefit Guar. Corp., No. 10-1167, 2012 U.S. Dist. LEXIS 9101 (D. Md. Jan.26, 2012) (Legg, J.). Holding: Granting defendant's motion to withdraw its earlier motion to dismiss and granting its motion for summary judgment, on the basis that its withholdings under Exemptions 4, 5, and 6 were proper and its search was sufficient; and denying plaintiff's motions for attorney's fees. Based on its review of the records, the court determines that PBGC properly asserted Exemption 5 to withhold portions of emails containing "legal communication between PBGC counsel and PBGC staff as well as other privileged, pre-decision discussions."
Menasha Corp. v. DOJ, No. 11-682, 2012 U.S. Dist. LEXIS 8937 (E.D. Wis. Jan.26, 2012) (Griesbach, J.). Holding: Denying defendant's motion for summary judgment, and concluding that the attorney work-product, attorney-client, and deliberative process privileges have been waived for certain documents shared between government parties due to their competing interests in the underlying CERCLA enforcement action. By way of background, the court notes that plaintiffs "are defendants in [a CERCLA] enforcement action [brought by the EPA] involving the cleanup of the Fox River." And, additionally, plaintiffs "have asserted counterclaims against the United States in that case, alleging they are entitled to recover response costs and damages from the United States based on the Army Corps of Engineers' (USACE) activities related to the Site and paper recycling activities by federal agencies." The court concludes that ENRD's Environmental Enforcement Section, which is representing the EPA in enforcing the CERLCA claims against plaintiffs, and ENRD's Environmental Defense Section, which is defending the USACE against the CERCLA claims brought by plaintiffs, have "specifically competing interests." The court holds that "communications between the attorneys representing [the adverse parties] therefore cannot be protected by attorney work product, attorney-client, or deliberative process privileges."
Am. Mgmt. Servs., LLC v. Dep't of the Army, No. 11-442, 2012 U.S. Dist. LEXIS 8124 (E.D.Va. Jan.23, 2012) (Ellis,J.). Holding: Granting, in part, Army's motion for summary judgment based on its withholdings pursuant to Exemptions 4 and 6, as well as information protected by the attorney client privilege of Exemption 5; concluding that the Army released all reasonably segregable portions of those records; and deferring, in part, Army's motion for summary judgment with respect to documents solely withheld pursuant to the deliberative process privilege, which the court will review in camera. The court concludes that the Army properly asserted the attorney-client privilege where it "has provided sufficient factual information for an independent evaluation of the applicability of the exemption and there is no reason to question the Army's good faith" and where it demonstrated that the "documents were not shared outside the Army." With respect to the documents that were withheld solely on the basis of the deliberative process privilege, the court concludes that the Army's submissions are insufficient for it to determine whether the communications are pre-decisional or post-decisional and whether they satisfy other aspects of the privilege. Because there are relatively few documents at issue, the court states that it will conduct an in camera review to determine the applicability of the deliberative process privilege.
At the outset, the court notes that "for the common interest doctrine to apply, an agency must demonstrate that, at the time of the communication in question, it had decided to support an outside party in a legal matter, and that doing so was in the public interest." Here, the court concludes that "the Army has demonstrated (i) that it shares a common interest with [a corporate business partner] in connection with a Georgia state action and [the company's] legal efforts to replace [plaintiff] as property manager [for military housing], and (ii) that it has determined that replacing [plaintiff] is in the public interest." Contrary to plaintiff's argument, the court finds that the Army is not required to be a party to the Georgia litigation in order for the common interest doctrine to apply. The court concludes that "although the Army is not a named party in the Georgia state action, it a 49% owner of one of the plaintiffs [in that case], and thus clearly can be considered a party in interest with respect to that litigation." The court finds that "even if [the Army's business partner] is motivated by profits, while the Army is motivated by the public interest, they still share a 'common and unitary' interest if they both seek the same result, in this case success in the Georgia state action and removal of [plaintiff] as property manager at Fort Benning and Fort Belvoir."
The court also determines that "it is entirely appropriate for the Army's financial interest to be the basis of the common interest doctrine," but notes that, here, "the entirety of the record reveal[s] other interests as well, such as the importance both to soldiers' lives and the Army's reputation of having well-run family housing programs." The court also concludes plaintiff's reliance on the Supreme Court's decision in Klamath, which "held that Exemption 5 did not extend to self-interested lobbying by outside parties,""is misplaced." Noting that Klamath did not involve the common interest doctrine, the court finds that "once an agency is 'actually persuaded' that a particular legal action advocated by a private entity is in the public interest, then Exemption 5 may apply." Here, "the Army does not seek to apply Exemption 5 to communications prior to its May 14, 2010 decision to agree with [its business partner's] proposed course of action, but only those communications after it was actually persuaded that course of action was in its interest."
Having determined that the common interest doctrine applies to certain communications exchanged between the Army and its business partner, the court concludes that those documents were properly protected by the attorney-client privilege. The court finds that the Army's submissions describe "the parties to the communication, date, and mode of communication," "provide the subject-matter of the communications and that the subject-matter is confidential," "identif[y] the documents in question with reasonable specificity," and, furthermore, plaintiff "does not object to the sufficiency of the Army's descriptions of the documents."
Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 WL 6780896 (S.D.N.Y. Dec. 27, 2011) (Scheindlin, J.). Holding: Granting, in part, defendant's motion for summary judgment on the basis that certain withholdings under Exemptions 5, 7(C), and 7(E) were appropriate; but ordering disclosure of other information withheld under Exemptions 7(C) and 7(E). The court holds that a four-page memo "'by an Assistant United States Attorney in the Western District of New York to the chief of that office's civil division, offering a legal opinion on legal standards applicable to immigration checks conducted by the Board Patrol aboard Amtrak trains'" "is a classic attorney-client communication and [additionally] may well be protected attorney work-product" and, as such, "is exempt from disclosure."
McCann v. HHS, No. 10-1758, 2011 WL 6251090 (D.D.C. Dec. 15, 2011) (Boasberg, J.). Holding: Granting HHS's motion for summary judgment where it properly withheld material pursuant to Exemptions 5, 6, and 7(E) and disclosed all reasonably segregable information. The court determines that HHS properly redacted portions of emails containing "'advice, recommendations, suggestions, opinion, and analysis [by HHS employees] about Plaintiff's HIPAA claims'" because they "fall squarely within the parameters of the [deliberative process privilege]," namely, the redacted portions are predecisional and deliberative.
Nat'l Rt. to Work Legal Def. and Educ. Found., Inc. v. U.S. Dep't of Labor, No. 09-2205, 2011 WL 6148661 (D.D.C. Dec. 12, 2011) (Lamberth, J.). Holding: Granting defendant's motion for summary judgment on the basis that DOL properly protected information pursuant to Exemptions 5 and 6. The court concludes that DOL's submissions adequately support its assertion of the deliberative process privilege to protect certain records. Specifically, the court finds that DOL properly withheld "two pages of unattributed handwritten notes" that "recorded discussions of policy issues surrounding . . . rulemaking" for a particular regulation, because "these notes reflect deliberations during the Department's process for arriving at and formulating a final policy." Similarly, the court determines that DOL properly redacted "34 pages of meeting minutes relating to various rulemakings," which "reflected 'deliberations between managers regarding possible courses of action,'" as well as "portions of an e-mail chain that discussed edits to a draft notice of proposed rulemaking."
For four other items for which DOL did not provide sufficient detail to support its assertion of Exemption 5, the court conducted an in camera inspection. Based on that review, the court concludes that DOL properly protected handwritten notes of a DOL employee which "reflect deliberations about policy and the personal opinions of [that individual] prior to the Department's implementation of that policy" as well as those of another employee that "clearly reflect[ed] the Department's discussions of elements of its process of formulating and drafting a final Notice of Proposed Rulemaking, including discussions concerning a draft final rule." Likewise, the court finds that other handwritten employee notes, which detail aspects of the rulemaking process, also qualify for protection under the deliberative process privilege.
Elec. Frontier Found. v. DOJ, No. 10-641, 2011 WL 5966379 (D.D.C. Nov.30, 2011) (Walton, J.). Holding: Concluding that defendants' submissions are insufficient for the court to determine the propriety of the DOJ's assertion of Exemption 5 and granting plaintiff's motion for summary judgment on this point; denying defendants' motion for summary judgment without prejudice, and ordering the defendants to provide revised Vaughn submissions to address the issues identified by the court. The court finds that there is insufficient information to determine the propriety of DOJ's withholdings pursuant to the deliberative process privilege. For one, the court finds that "in many instances, the DOJ's components' Vaughn submissions fail to provide necessary contextual information about the particular decision-making processes to which the withheld documents contributed, and the role the withheld documents played in those processes." Second, the court concludes that defendants "fail[ed] to provide sufficient detail as to the identities, positions, and job duties of the authors and recipients of the withheld documents." Third, the court determines defendants "failed to explain in sufficient detail 'whether [the withheld] drafts were (1) adopted formally or informally, as the agency position on the issue; or (2) used by the agency in its dealings with the public." Lastly, the court finds that the "Vaughn submissions do not provide an adequate basis for evaluating the plaintiff's claim that the agency waived the deliberative process privilege as to certain documents." Accordingly, the court orders DOJ to supplement its Vaughn submissions.
Pub.Emps.forEnv't Resp. v. Off. of Sci. & Tech. Pol'y, No. 10-1762, 2011 WL 5358711 (D.D.C. Nov. 8, 2011) (Jackson, J.). Holding: Denying parties' motions for summary judgment where OSTP's submissions are insufficient for the court to determine the propriety of the Exemption 5 withholdings; and ordering defendant to provide additional information to support its claims of exemption. At the outset, the court notes that plaintiff "does not challenge that the redacted and withheld documents are predecisional, and the Court finds nothing in the record that suggests otherwise." Accordingly, the court will only address plaintiff's claim that "OSTP failed to meet its burden to establish that the redacted statements and withheld documents were deliberative in nature." Reviewing two district court cases in which the sufficiency of agencies' submissions was addressed, the court finds that "OSTP's Vaughn index is more similar to the legally insufficient index in Defenders of Wildlife [v. U.S. Border Patrol], than to the legally sufficient index in [People for the American Way Foundation v.] National Park Services." The court finds that "[t]hough OSTP provided information that was otherwise missing in Defenders of Wildlife – the originating component agency, the author, and the recipient(s) of the documents – every declaration for why the document was redacted or withheld contains the same boilerplate language" stating that memorandum or emails at issue are "'preliminary, non-final draft[s].'" The court concludes that "[w]ithout additional information regarding OSTP's decision to redact and withhold information, [it] does not have sufficient information to grant summary judgment in favor of either party at this time" and directs OSTP "to amend or supplement its Vaughn index and/or declarations to provide more detail as to why each redacted or withheld document falls within the deliberative process privilege."
Lewis v. DOJ, No. 09-746, 2011 WL 5222896 (D.D.C. Nov. 2, 2011) (Walton, J.). Holding: Granting, in part, defendant's renewed motion for summary judgment based on the adequacy of EOUSA's and the Office of Professional Responsibility's (OPR) searches, and the propriety of OPR's assertion of Exemptions 5 and 6 as well as EOUSA's and DEA's invocation of Exemptions 7(C) and 7(D); and denying summary judgment as to four pages of records referred from OPR to EOUSA, and OPR's reliance on Exemption 2. The court holds that OPR properly asserted the deliberative process privilege to withhold "'a predecisional memo from one OPR attorney to her superior recommending action in the case,'" the release of which "'would disclose the decision making process' regarding steps to be taken, or not taken, in response to the plaintiff's complaint." The court finds that plaintiff's "bald assertion" that "'defendant has made conclusory and generalized allegations'" with respect to withholdings "utterly fails to establish a genuine issue of material fact as to the defendant's decision to withhold this predecisional memorandum."
Nat'l Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement Agency, No.10 Civ. 3488, 2011 WL 5056989 (S.D.N.Y. Oct. 24,2011) (Scheindlin,J.). Holding: Granting plaintiffs' motion for summary judgment, and ordering defendants to release the final version of the memorandum at issue with redactions for material properly protected by the deliberative process privilege, and earlier drafts of the memo redacting only information that does not appear in the final version; and also permitting redactions for names of employees other than agency heads and high-level subordinates that appear in the final version and the earlier drafts. Deliberative process privilege: As an initial matter, the court reaffirms its earlier decision, which concluded that the majority of the memorandum at issue is not protected by the deliberative process privilege, noting that now "it is even clearer that the document was used to justify an already decided policy, rather than to persuade parties debating a policy shift."
Attorney-client privilege: As a threshold issue, the court notes that "it is undisputed that the memo constitutes communications between a client ([Immigration and Custom Enforcement (ICE)] policymakers) and its attorney (the office of the legal advisor)." Contrary to plaintiffs' argument that the memo contains "post-hoc legal rationale [that] is . . . not protected 'legal advice,'" the court finds that the "the fact the agency may have already adopted a policy that Secure Communities would be mandatory does not mean that a memorandum containing legal analysis of the Secure Communities mandate does not constitute legal advice."
Waiver: The court "adopt[s] the D.C. Circuit's reasonable burden-shifting formula" whereby "'a plaintiff asserting a claim of prior disclosure must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld'" and, once plaintiff has met this burden, "the agency must then meet its burden of proof to establish the exemption." Here, the court notes that "[p]laintiffs have produced evidence showing that ICE officials discussed [in both general and specific terms] the legal justification for making Secure Communities mandatory with elected officials, immigrant advocates, and other law enforcement agencies at various times during 2010 and 2011." Additionally, the court notes that "much of the precise information in the October 2 Memorandum [at issue] has already been produced as part of this litigation." Moreover, the court finds that "[n]early every component of the October 2 Memorandum appears in some public document or statement by the defendants," "includ[ing] nearly all the factual background, specific references to and discussions of all of the statutes upon which the Memorandum relies, and even significant components of the legal discussion regarding the strengths and weaknesses of the agency's position."
The court also finds defendant's declaration "is insufficient to carry the agency's burden of proving that ICE has maintained the confidentiality of the Memorandum" where "only senders and recipients who were named on the face of a withheld document were asked whether they had disseminated it outside DHS and its component agencies" and not the other individuals who had received it. The court also determines that ICE did not demonstrate that the standard for invoking the attorney client privilege, "which extends only to 'agents or employees of the organization who are authorized to act or speak for the organization in relation to the subject matter of the communication,'" was satisfied. The court concludes that defendants failed to show that no disclosure of the memo or the legal analysis contained in it was made "to an agent or employee who was not authorized to speak on behalf of ICE about the mandatory nature of Secure Communities." The court holds that "[g]iven the extensive and specific evidence produced by plaintiffs showing that the factual information, legal analysis, and legal conclusions in the Memorandum have been disclosed to the public, [it] find[s] that ICE has failed to meet its burden of proving that confidentiality was maintained."
Adoption: The court also concludes that the memo was adopted as the agency's working law where the there is evidence that the agency adopted the conclusions and analysis contained in the memorandum, and "the agency has repeatedly reiterated the arguments of the October 2 Memorandum in other documents and discussions with the public." Moreover, the court finds that, other than asserting that "plaintiffs have failed to meet their burden of proving adoption," "defendants have produced no evidence rebutting the claim of adoption . . . [and] have failed to even dispute plaintiffs' claim that adoption took place." Accordingly, the court orders that defendants produce the final version of the memo with redactions for material determined to be protected by the deliberative process privilege, as well as earlier drafts of the memo redacting only information that does not appear in the final version, and also permitting redactions for "the names of employees other than agency heads and high-level subordinates that appear in the final Memorandum or the earlier drafts."
Media Research Ctr. v. DOJ, No. 10-2013, 2011 WL 4852224 (D.D.C. Oct. 13,2011) (Huvelle,J.). Holding: Granting DOJ's motion for summary judgment on the basis that it conducted an adequate search for responsive records, it properly determined that certain records were not "agency records" for FOIA purposes, and it properly invoked Exemption 5. The court concludes that DOJ properly invoked the attorney work-product privilege to withhold portions of six pages. With respect to redacted e-mails that discuss "specific, imminent litigation," the court finds no support for plaintiffs' argument that DOJ should disclose or provide additional justification for withholding "small amount[s] of information." As to two redacted e-mails concerning "possible litigation related to the health care reform legislation," the court concludes that contrary to plaintiffs' contention, DOJ is not required to point to specific litigation in order to invoke the attorney work- product privilege. The court comments that "when government attorneys act as 'legal advisors' to an agency considering litigation that may arise from challenge to a government program, a specific claim is not required to justify the assertion of this privilege." Rather, "the privilege may be invoked if the agency documents were prepared 'because of the prospect of litigation' and by attorneys who 'subjective[ly] belie[ved] that litigation was a real possibility, and that belief [was] objectively reasonable.'" Here, the court finds that "DOJ has explained – and the redacted material makes clear – that the emails, including the redacted material, discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge."
Hajro v. U.S. Citizenship & Immigration Servs., No. 08-1350, 2011 U.S. Dist. LEXIS 117964 (N.D. Cal. Oct. 12, 2011) (Grewal,Mag.). Holding: Dismissing FOIA claims brought against individual defendants; holding that party who did not submit FOIA request at issue has standing to assert a "pattern or practice" claim under FOIA; granting declaratory relief that defendant engaged in pattern or practice of failing to abide by FOIA; granting plaintiffs' request for injunctive relief; concluding that defendant is required to release certain non-exempt information previously withheld pursuant to Exemption 5; concluding defendant's FOIA processing policy violates a previous settlement agreement as well as the terms of the Administrative Procedure Act (APA) and the FOIA; dismissing a claim brought under APA; and granting partial summary judgment to defendants on plaintiffs' equal protection claims. The court concludes that USCIS has not justified its decision to withhold in full certain handwritten notes "'generated during the deliberative process engaged in by the Service regarding the adjudication of [Hajro's] application for citizenship'" pursuant to Exemption 5. Although the court finds that the Vaughn Index demonstrates that USCIS "has legitimate concerns that disclosure of the notes risks disturbing and publicizing deliberative process that is essential to an investigative and adjudicative proceeding such as involves the naturalization determination," it concludes that "USCIS has failed to substantiate this legitimate concern with any detailed affidavit or even a description of what type of material the notes cover and, in a non-conclusory manner, their role in the agency's process." Additionally, the court comments that "USCIS has not set forth any basis for the court to evaluate whether, taking into account the deliberative process as a whole, relevant factual information contained in the handwritten notes may be disclosed without revealing the mental process of the decisionmaker." As such, "the court finds it reasonable to require USCIS to isolate the [specific] factual information requested [by Hajro regarding his military service] and disclose it."
Kellerhals v. IRS, No. 2009-90, 2011 WL 4591063 (D.V.I. Sept.30, 2011) (Gómez, J.). Holding: Adopting magistrate's recommendation that the IRS properly withheld information pursuant to Exemptions 3, 5, 7(A), and 7(E); but concluding that one document containing mainly factual data could be produced with appropriate redaction. The court adopts the magistrate's recommendation that, with one exception, all the documents for which Exemption 5 was asserted "were validly withheld because they either contain privileged information or fall within another exemption." The court notes that "[w]hile some of the documents contain factual material, that material is so intertwined with the analysis that any attempt to reveal only factual material would reveal the agency's deliberations." However, the court finds that one document "contains mainly factual data" and "the IRS has failed to satisfy its burden with respect to this document." With regard to plaintiff's argument that no privilege can apply to "communications between the IRS and the [National Tax Advocate]" because it is "'an independent office established by Congress with interests and a mission often adverse to that of the Service,'" the court finds that, because "the NTA reports directly to the Commissioner of Internal Revenue" and "the NTA attorneys are part of the IRS Chief Counsel staff," these communications "are privileged."
Adionser v. DOJ, No. 10-27, 2011 U.S. Dist. LEXIS105035 (D.D.C. Sept. 15, 2011) (Leon,J.). Holding: Granting summary judgment in favor of defendants based on the adequacy of their searches and the propriety of their exemption claims. The court concludes that EOUSA properly invoked the attorney work product privilege "to protect records reflecting 'such matters as trial preparation, trial strategy, interpretations, and personal evaluations and opinions pertinent to Plaintiff's criminal case.'" The court also finds that EOUSA properly asserted the deliberative process privilege to withhold "a witness immunity request, handwritten attorney's notes, a warrant affidavit, a property list, a case timeline, and attorney correspondence," the disclosure of which "'would jeopardize the candid and comprehensive discussions that are essential for efficient and effective agency decisionmaking' with respect to litigation strategy."
Kortlander v. BLM, No. 10-132, 2011 U.S. Dist. LEXIS 103264 (D. Mont. Sept. 13, 2011) (Cebull, J.). Holding: Upon conducting an in camera review, granting summary judgment to defendant based on its claims of exemption and the adequacy of its search. Deliberative Process Privilege: The court concludes that BLM properly asserted the deliberative process privilege to protect documents concerning an "undercover operation and investigation which are predecisional and directly relate to the deliberative process." Moreover, the court notes "[d]raft documents subject to revision or containing proposed changes fall well within the deliberative process privilege." Attorney-client & Attorney Work Product Privileges: The court concludes that the attorney-client and attorney work product privileges properly protect "written documents or memorandums containing legal advice, as well as client communications to its attorneys, email exchanges between clients and attorneys or amongst government attorneys, letters from the prosecutor to the agency about persons providing information with expectation of confidentiality, memorandums from agents to a prosecutor providing information requested by counsel, letters from attorney to witnesses about case information protected by attorney work product, regarding testimony before the grand jury, and information provided to the attorney by a witness with the expectation of confidentiality."
Brennan Ctr. for Justice at NYU School of Law v. DOJ, No. 09-8756, 2011 U.S. Dist. LEXIS 99121 (S.D.N.Y. Aug. 30, 2011) (Marrero,J.). Holding: Granting plaintiff's motion for summary judgment with respect to three memoranda withheld pursuant to Exemption 5; and ordering defendants to produce certain portions of the withheld documents. Deliberative process privilege: At the outset, the court notes that plaintiff "does not seriously dispute that the OLC Memoranda would, absent subsequent government action, be subject to Exemption 5's deliberative privilege process." However, the court concludes that "[u]pon review of the evidence presented, including the nonredacted portions of the Withheld Documents that were previously submitted to the Court for in camera review, . . . the OLC Memoranda have lost their deliberative privilege process protections." Based on all the available information and an in camera inspection, the court finds that "USAID and HHS adopted as agency policy both the conclusions provided in [a particular OLC] Memo . . . as well as OLC's reasoning and analysis." Moreover, "the exchange of emails between OLC and HHS and USAID before and after the issuance of [a particular OLC] Memo; the publication of official policy statements by both HHS and OLC shortly after [that] Memo was circulated; and the subsequent statements by DOJ and USAID officials concerning the reason for policy reversal in September 2004 all support the conclusion that HHS and USAID took their marching orders – and the rationale for those orders – directly from DOJ and the Administration." The court further finds that "[t]he Government's suggestion that repeated public characterization of [that OLC] Memo as 'tentative' and 'draft' advice indicates that it was never incorporated into final agency policy ignores explicit policies promulgated by HHS and USAID" as result of that memo. In addition, the court also concludes that the fact "[t]hat OLC subsequently changed its position does not diminish the impact of its initial determination." Likewise, the court concludes that "the conclusions and analysis" contained in two additional draft memoranda "were the basis for the Government's determination to alter its policy" and finds that, based on public statements made by HHS and USAID, "the Government incorporated [those two other OLC draft] Memoranda by reference." Attorney-client privilege: The court holds that "because the Government, in light of all the facts and circumstances [discussed in connection with the court's deliberative process privilege analysis], incorporated the OLC Memoranda into HHS's and USAID's official policy, the attorney-client privilege cannot be invoked to bar the OLC Memoranda's disclosure."
Techserve Alliance v. Napolitano, No. 10-353, 2011 WL 3606525 (D.D.C. Aug. 17, 2011) (Lamberth, J.). Holding: Granting defendants' motion for summary judgment on the basis that its search was adequate and its assertions of Exemptions 5 and 7(E) were proper. The court holds that that USCIS properly asserted the deliberative process privilege to protect certain email exchanges that discuss possible policy changes, draft documents, and advisory opinions. The court rejects plaintiff's argument that defendants failed to show the pre-decisional nature of certain documents where they did not "match the document with the corresponding final document." To the contrary, the court finds that "[a]n agency does not need to identify the policy or act that spurred the creation of a particular draft document." Here, the court concludes that "e-mail exchanges between various agency officials regarding the possible implementation of changes to processing fraud matters involving H1-B visas," "reflect on-going discussions and debate regarding a change to current processing." The court determines that release of these e-mails "would stymie the consultative process because employees might hesitate to express their opinions for fear of public disclosure." As to draft documents, the court notes that they "likely are to be protected under the deliberative process privilege because 'draft documents,' by their very nature, are typically pre-decisional and deliberative. Here, disclosure "would provide the public with conflicting information." The court likewise concludes that memos and e-mails that contained advisory opinions, and "seek guidance regarding process and policy changes" were properly withheld in full "because they are all pre-decisional and deliberative" and release "could hinder the deliberative process and confuse the public."
Judicial Watch, Inc. v. U.S. Dep't of the Treasury, No. 10-302, 2011 WL 3582152 (D.D.C. Aug. 16, 2011) (Howell, J.). Holding: Granting summary judgment to Treasury based on its withholdings under Exemption 5, but ordering defendant to release reasonably segregable information from one document or to demonstrate why this information is not segregable. Deliberative process privilege: Based on defendant's submissions and an in camera review of the documents at issue, the court determines that deliberative process privilege covers redacted portions of internal emails detailing pre-meeting discussions and memoranda containing a "'draft issues list.'" The court finds that "defendant properly identified the harm that would result from the release of information by noting that release would 'have a chilling effect on open and frank discussions within the Treasury.'" Additionally, the court determines that "defendant also properly identified the deliberative process" at issue, namely, the records concern "'possible approaches to take with respect to outstanding policy matters at issue related to the Special Master's ongoing review of AIG's compensation structures pursuant to the Interim Final Rule."
With regard to plaintiff's argument that "an agency must prove that the withheld information 'would actually inhibit candor,'" the court finds that "plaintiff overstates defendant's required showing." Rather, the court concludes that "defendant only needs to demonstrate that the information was pre-decisional and deliberative and that, therefore, the privilege is ultimately being invoked 'to prevent injury to the quality of agency decisions by allowing government officials freedom to debate alternative approaches in private.'" The court finds that defendant has made such a showing in this case.
Deliberative process privilege/segregability: The court concludes that "the factual material in the disputed documents [consisting of information related to AIG's historical and proposed compensation payments and structures] was properly redacted or withheld using the deliberative process exemption here." The court notes that, as in this case, "where factual material was assembled into a summary or memorandum through an exercise of judgment in determining which facts to highlight 'for the benefit of an official called upon to take discretionary action,' [the] deliberative process privilege may be properly asserted."
Attorney client privilege: As a preliminary matter, the court comments that "[s]ince the Court has already determined that the deliberative process privilege shields all of the disputed information in these documents, the issue of the extent of the portions additionally protected by the attorney client privilege . . . is academic." The court goes on to conclude that the attorney client privilege protects communications containing facts from a third party where the communication concerned "the agency's own actions in its ongoing evaluation of AIG under the Interim Final Rule." The court finds that, here, the "agency staff sought legal advice 'based upon facts provided confidentially by Treasury to its attorney' and the communication 'has been held in confidence.'" The court rejects plaintiff's argument that defendant is required to show that certain employees "were authorized to 'speak for'" Treasury in order for the attorney-client privilege to apply. Rather, the court notes that "[c]ourts in this Circuit have routinely held that attorney-client privilege applies to employees at varying levels of seniority in an agency or corporation" and finds that defendant has shown that communications between these employees and the agency attorney clearly fell "'within the scope of each of these employee's duties'" and therefore is properly covered by the attorney client privilege.
Judicial Watch, Inc. v. DOJ, No. 10-851, 2011 WL 3343622 (D.D.C. Aug. 4, 2011) (Walton,J.). Holding: Granting DOJ's motion for summary judgment with respect to its withholdings pursuant to the Exemption 5; and ordering DOJ to provide additional information regarding the segregability of documents protected by the deliberative process privilege. The court concludes that certain records which pre-date DOJ's dismissal of the civil rights action, such as "e-mails containing draft memoranda along with related discussions and legal analyses about the New Black Panther Party case," "fall well within the scope of the work-product doctrine" because all "were created in 'the context of a reasonable anticipation of the motion . . . filed in' the New Black Panther Party case.'" The court also finds that "the withheld records contain 'Civil Rights Division's attorneys' private thoughts, tactics, strategy, factual and legal analyses, and appraisals of the sufficiency of the available evidence' . . . and reveal the 'decisionmaking process, strategies and opinions of litigators and officials within [DOJ] on the [New Black Panther Party] litigation." The court rejects plaintiff's contention that the emails were "'informational.'" To the contrary, the court determines that defendants' submissions demonstrate that "along with real-time litigation updates concerning the New Black Panther Party case, the documents withheld also convey candid assessments of the evidence and case law as well as commentary and analyses pertaining to draft memoranda and proposed court filings." With regard to records that post-date the filing of the dismissal papers, the court finds that those documents "were not prepared in contemplation of litigation and are thus outside the scope of the work-product privilege," although they are properly protected by the deliberative process privilege.
The court finds that records created in order to prepare public statements about the litigation, and to respond to media and Congressional inquiries on issues related to the dismissal of the case, are covered by the deliberative process privilege. The court notes that post-decisional documents are protectable under the deliberative process privilege "to the extent they 'recount or reflect predecisional deliberations.'"
Smith v. Dep't of Labor, No. 10-1253, 2011 WL 3099703 (D.D.C. July 26, 2011) (Boasberg,J.). Holding: Granting defendant's motion for summary judgment on the basis that its withholdings pursuant to Exemptions 5 and 6 were proper; and denying plaintiff's cross-motion for summary judgment. The court concludes that portions of an Office of Inspector General (OIG) report that contained the "thoughts, actions, opinion and ideas" of Mine Safety and Health Administration (MSHA) employees who "debated the application of a particular citation that MSHA ultimately decided not to issue" were properly protected pursuant to the deliberative process privilege. The court finds that "since the redacted portion of the report contains information about a citation that was considered but not issued, the subject matter is necessarily antecedent to the decision not to issue that citation." The fact that the OIG report was published "after the citations were issued" does not alter the nature of the deliberative nature of the communications "because the question is whether the deliberation, not the publication of the report, preceded the citation" and, here, "[i]t obviously did." Moreover, based on an in camera review the court is satisfied that "the redacted six lines [that] discuss deliberations over a proposed citation that was not issued" "contain information that is both predecisional and deliberative."
Nat'l Day Laborer Organizing Network v. U.S. Immigr.& Customs Enforcement Agency, No. 10-34888, 2011 WL 2693655 (S.D.N.Y. July 11, 2011) (Scheindlin, J.). Holding: Granting, in part, and denying, in part, defendants' motion for summary judgment; granting, in part, and denying, in part, plaintiffs' motion for summary judgment; and ordering defendants to provide additional justification regarding certain information withheld pursuant to the deliberative process and attorney-client privileges. With respect to documents which discuss ways of presenting Secure Communities policies to the public, the court finds that "[s]uch 'messaging' is no more than an explanation of an existing policy, which is not protected by the deliberative process privilege." The court further comments that "[d]eliberations about how to present an already decided policy to the public, or documents designed to explain that policy to – or obscure it from – the public, including in draft form, are at the heart of what should be released under FOIA." To the extent that the documents are marked as "drafts," the court maintains that "a draft is only privileged if it contains discussions that reflect the policy-making process," and not "if it reflects the personal opinions of a writer with respect to how to explain an existing agency policy or decision." Noting that "[a] post-decisional document, draft or no, by definition cannot be 'predecisional,'" the court here "base[s] [its] decision [regarding the documents at issue] on the dates that clear and unambiguous statements of agency policy were made." As such, the court holds that "any discussions of the voluntary nature of the [Secure Communities] program after January27, 2010, when the agency publicly stated that it was voluntary, and any discussions of the mandatory nature of the program after March 2010, when there is evidence that ICE and the FBI discussed its mandatory nature with Washington, D.C. local law enforcement officials, are postdecisional" and not protected by the deliberative process privilege. Defendants are granted summary judgment with respect to certain email chains reflecting internal predecisional deliberations.
The court finds that plaintiffs have presented credible evidence that some of the information in the documents withheld by defendants pursuant to the attorney-client privilege was "shared with individuals outside of the agencies." Commenting that "[w]hen the content of an attorney-client communication has been disclosed to other parties, that communication is no longer privileged," the court concludes that for the documents for which the attorney client privilege was claimed, defendants "must represent that confidentiality has been maintained."
Judicial Watch, Inc. v. Dep't of Treasury, No. 09-1508, 2011 WL 2678930 (D.D.C. July 11, 2011) (Howell, J.). Holding: Granting Treasury's motion for summary judgment except for three documents that contain reasonably segregable material that should have been released. As a result of an in camera review and Treasury's submissions, the court concludes that, in large part, the defendants properly withheld internal memos and meeting minutes pursuant to the deliberative process privilege. The court rejects plaintiff's contention that "the deliberative process privilege is qualified and can be overcome by a showing of need." Rather, the court holds that "[w]hile the deliberative process privilege is generally a qualified privilege in civil litigation against the government, documents subject to qualified privileges for which a plaintiff must make a showing of need are not documents that would 'routinely be disclosed' in private litigation" and, accordingly, "are shielded from disclosure under Exemption 5." The court further notes that "[c]ourts in this Circuit have consistently treated Exemption 5 as an unqualified privilege." Segregability: In response to plaintiff's claim that Treasury failed to segregate factual material from materials for which it asserted the deliberative process privilege, the court finds that Treasury properly withheld three internal memoranda because "all reflect the authors' deliberative process in selecting factual material to be disclosed in the memoranda." Additionally, the court observes that "Treasury undertook a careful document-by-document analysis to ensure that only exempt material was withheld or redacted from the document production." Likewise, the court determines that portions of certain meeting minutes were properly withheld "[b]ecause releasing the portions of the minutes that summarize the meeting discussions would reveal the internal deliberative process of the [Office of Financial Stability (OFS)] Investment Committee." However, upon conducting an in camera inspection, the court determines that "defendants improperly withheld reasonably segregable information in the minutes – namely, the headers at the top of each set of minutes that list the date and time of the meeting, the names of the OFS Investment Committee members present, and the names of observers." The court finds that "[r]elease of these headers would not create [ ] indecipherable sentences; the headers are at the top of each page and are easily separable from the exempt portions of the minutes." As such, the court concludes that these portions of the minutes must be disclosed.
The court also finds that Treasury properly identified the decision-making processes underlying its decision to withhold certain internal emails strings, a memorandum, a recommendation, and an evaluation form. With respect to emails containing analysis about a bank's application for TARP funding, and the timing for consideration of it, the court find that "[t]he deliberative nature of both of these documents is plain" because "[r]elasing an internal, pre-decisional analysis would defeat the purpose of the deliberative process privilege, which 'rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.'" Additionally, the court notes that "the D.C. Circuit recognized in Wolfe v. Dep't of Heath and Human Services, [that] information about the timing of the deliberative process is properly protected under the deliberative process privilege."
As to an email string discussing how to handle a press inquiry, the court finds that, although the emails were exchanged after an agency decision as to whether to award TARP funding to the bank, they are covered by the deliberative process because they "reflect deliberations as to how to respond to a press inquiry regarding the agency's earlier decision to award TARP funding to [a bank]." Similarly, the court concludes that emails concerning a meeting between Treasury officials and a minority bankers association, which "summarize information the defendant received from the FDIC" regarding the bank's eligibility for TARP funding were properly withheld because "[r]evealing these internal, pre-decisional deliberations would undermine the purpose of the deliberative process privilege." Additionally, the court finds defendants sufficiently identified the deliberative process implicated by a memoranda containing summary information related to a bank applying for TARP funding. The court also concludes that "both the FDIC recommendation and the [Office of the Comptroller of the Currency] evaluation represent inter-agency, pre-decisional communications regarding [a bank] and its TARP funding application."
The court finds that defendants properly redacted a portion of an email chain containing "'communications between Treasury Staff and Treasury Legal'" "'related to Treasury policy aimed at insuring the [Capital Purchase Program (CPP) (a TARP initiative)] application process is free from political influence'" pursuant to the attorney client privilege, as well as the deliberative process privilege. The court dismisses plaintiff's arguments that the attorney-client privilege is not applicable because some of the information relied on by Treasury was provided by the bank "indicat[ing] that the defendant has failed to show that the information was held in confidence between the parties" and "that information provided by [the bank] would not be 'facts communicated in confidence by a client to an attorney for purposes of legal representation.'" To the contrary, the court finds that "[t]he request for advice at issue here occurred in response to a press inquiry and took place in the context of an 'internal discussion related to Treasury policy aimed at ensuring the CPP application process is free from political influence.'" The court further determines that "[s]uch a request for legal advice concerns the agency's own actions and legal interests in connection with its handling of [the bank], and 'when the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselor, [Exemption 5] applies.'" The court concludes that "[t]he agency staff sought legal advice 'based upon facts provided confidentially by Treasury to its attorney' and the communication 'has been held in confidence.'"
Darui v. Dep't of State, No. 09-2093, 2011 WL 2678715 (D.D.C. July 11, 2011) (Jackson, J.). Holding: Granting defendant's motion for summary judgment. The court holds the a series of emails "prepared by attorneys for DOJ and State," which "'were prepared in connection with a law enforcement proceeding'" are protected by the attorney work-product privilege. The court finds that "[g]iven both the subject matter of the emails and the timing [i.e., two weeks before a criminal court proceeding], and in light of the Court's own review of the material, it is clear to the Court that the government attorneys were 'focusing upon specific events,' and a 'specific party,' thus 'hav[ing] litigation sufficiently "in mind'" for the documents to qualify as attorney-work product." Additionally, the court notes that "[t]he attorneys from DOJ were representing the United States in the criminal case against the plaintiff, so the emails qualify as being prepared 'by or for another party or its representative (including the other party's attorney . . . )."
Cuban v. SEC, No. 09-996, 2011 U.S. Dist LEXIS 71064 (D.D.C. July 1, 2011) (Walton,J.). Holding: Granting, in part, defendant's motion for reconsideration with respect to the adequacy of the SEC’s search for a portion of the request and its assertion of Exemptions 3, 5 and 7(C) to withhold certain information; to the extent defendant's motion is denied, the court requires the SEC to provide additional information regarding searches and the application of exemptions. With respect to certain documents withheld pursuant to the deliberative process privilege, the court concludes that the SEC's revised Vaughn Index "does not provide much insight into the predecisional deliberations asserted" and the declarations "speak only generally about the documents and the asserted deliberative process involved, rather than addressing the documents individually and explaining how they furthered deliberation on a particular legal or policy matter by making a recommendation or expressing an opinion." Further, "the declaration provides no specifics regarding the disciplinary discussions referenced in the documents, and without something more, the Court cannot determine whether the defendant is correct to withhold these documents pursuant to the deliberative process privilege." However, the court concludes that the SEC has now "met its burden" under Exemption 5 with regard to four documents, consisting of email chains and a draft memorandum, for which the agency provided additional detail as to the deliberative nature of the records.
The court also concludes that the SEC has justified its assertion of the attorney work product privilege for certain documents because "[t]he Court's previously expressed concern regarding the application of Exemption 5 and the objective reasonableness of the defendant's belief that litigation was a real possibility . . . is now allayed by as it is clear that such concerns were indeed reasonable." However, the court finds that other submissions by the SEC "do[ ] not provide any more detail supporting the applicability of the work-product privilege" for five other documents.
In terms of the attorney client privilege, the court finds that the SEC's supplemental "declarations 'demonstrate that confidentiality was expected in the handling of these communications and that [the SEC] was reasonably careful to keep this confidential information protected from general disclosure.'" As such, the court finds that "[t]he SEC has therefore met its burden to justify withholding documents it has identified based on the Attorney-Client privilege."
Kubik v. BOP, No. 10-6078, 2011 U.S. Dist. LEXIS 71300 (D. Or. July 1, 2011) (Coffin,Mag.). Holding: Granting, in part, BOP's motion for summary judgment with respect to its assertion of Exemption 5 and certain redactions under Exemption 7(C); granting, in part, plaintiffs' motion for summary judgment with respect to the adequacy of the search and information withheld pursuant to Exemptions 7(C), 7(E) and 7(F). The court concludes that the attorney work-product privilege is not applicable to the portions of a document containing summaries of the riot and an internal committee's assessment of, and recommendations stemming from, the incident. Rather, the court finds that "[a]lthough the General Counsel may have requested an investigation into the riot, the record indicates that the withheld portions of [a particular] document [ ] contain the Board of Inquiry committee's summary of the staff members recollections and response to the riot – materials which cannot fall under the umbrella of an attorney's mental impressions, conclusions or opinions, or legal theories concerning litigation." Rather, the court concludes that "this material is merely a summary of the facts, to which the privilege does not apply."
However, the court concludes that this material is covered by the deliberative process privilege, finding that "[t]he committee's assessment of the prison atmosphere and resulting findings and recommendations is exactly the process Exemption 5 seeks to protect [from] disclosure." Here, the court notes that "this portion of the document was prepared before the committee made its final recommendation" and its disclosure "has the potential to chill frank discussions in the BOP's decision making process and to diminish the deliberative process privilege."
Lake Travis Transitional Med. Ctr. v. HUD, No. 10-950 (W.D. Tex. June 11, 2011) (Sparks,J.). Holding: Ordering defendant to produced all documents examined in camera in full, except for certain information protected by Exemption 5. The court concludes that HUD improperly asserted Exemption 5 to protect facts and factual analysis. The court finds that the majority of the documents withheld pursuant to the deliberative process privilege do not offer an opinion. However, the court permits HUD to continue to withhold a "prefactory comment [that] offer[s] the personal opinion of the author and a discussion of possible changes in the analysis" as well as an attachment that "identifies questions and issues the author has concerning the analysis" used by HUD to determine whether an area is medically underserved.
Mo. Coal.for the Env't Found. v. U.S. Army Corps of Eng'rs, No. 05-2039, 2011 U.S. Dist. LEXIS 65575 (E.D. Mo. June 21, 2011) (Buckles,Mag.). Holding: Upon conducting segregability analysis as ordered by the Eighth Circuit, the court adopts and incorporates the conclusions reached in its previous memorandum and order granting summary judgment in favor of the U.S. Army Corps of Engineers on the basis that the agency properly asserted the deliberative process privilege to withhold the documents at issue. Following a remand from the Eighth Circuit, the court considers the segregability of documents which were all withheld by defendant under Exemption 5 in connection with the deliberative process privilege. As an initial matter, the court notes that "Plaintiff has in no way challenged the adequacy of Defendant's efforts." Based on the supplemental submissions provided by defendant, the court now concludes that "all reasonably segregable non-exempt information has been released to Plaintiff, and that the redacted portions contain no reasonably segregable information." The court finds that the supplemental "[d]eclaration clearly shows that [the declarant] reviewed and processed each and every requested document for the purpose of identifying and releasing any and all segregable information." Additionally, the court determines that "[d]efendant's justifications are sufficiently detailed, and they correlate the specific redacted information with the basis for claiming Exemption 5." Lastly, the declarant's statement "that the redacted portions of the documents are not segregable is supported by review of the redacted documents themselves." Accordingly, the court adopts and incorporates the findings reached in its previous memorandum and order granting summary judgment to defendant.
Families for Freedom v. U.S. Customs & Border Protect., No. 10-2705, 2011 U.S. Dist. LEXIS 63829 (S.D.N.Y. June 16, 2011) (Scheindlin,J.). Holding: Granting, in part, defendants' motion for summary judgment as to withholdings under Exemption 5; and granting, in part, plaintiffs' motion for summary judgment with respect to material withheld under Exemptions 6, 7(C), and 7(E). The court holds that defendants properly asserted the attorney client privilege to withhold certain training memoranda that "were created by attorneys in CBP's Office of Assistant Chief Counsel and contain legal analysis and guidance to Border Patrol agents regarding the use of race or ethnicity in executing their duties, and analysis of case law concerning racial profiling in law enforcement." The court finds that the memoranda "fall squarely within the attorney client privilege" because they "were 'created by agency attorneys for the purpose of imparting legal advice to employees of the agency,' and consist of legal analysis and guidance." The court rejects plaintiffs' suggestion that the "'agency [should] not be permitted to develop a body of secret law used by it in the discharge of its regulatory duties and in its dealings with the public'" and that the memos should be released "'[g]iven the public's interest in establishing that, in fact, racial profiling is not used [ ] in the course of CBP's transportation checks.'" Contrary to plaintiffs' assertions, the court find that plaintiffs' claims "do[ ] not come close to establishing the existence of a body of 'secret law,' particularly because plaintiffs also concede that the memoranda may describe how CBP officer's should avoid using racial profiling, which would be in accordance with the agency's public position." Additionally, the court dismisses plaintiffs' argument that defendants waived their ability to assert Exemption 5 for the documents by disclosing other memoranda concerning the same general subject matter. The court declines to address plaintiffs' arguments regarding defendants' assertion as to the attorney work product privilege because it finds that memoranda were properly withheld pursuant to the attorney client privilege.
McKinley v. Fed.Housing Fin. Agency, No. 10-1165, 2011 WL 2198577 (D.D.C. June7, 2011) (Kennedy, J.). Holding: Concluding that FHFA properly asserted the deliberative process privilege to withhold deliberative portions of two documents; ordering FHFA to produce those documents in camera so that the court may evaluate the applicability of the attorney work-product privilege; and holding in abeyance the parties' motions for summary judgment. At the outset, the court notes that "it is undisputed that the two documents are predecisional," and that the parties only dispute whether they are deliberative. The court dismisses plaintiff's claim that "a document is not deliberative unless the agency can show that the release of the document would harm the agency's decisionmaking process." Rather, the court comments that the D.C. Circuit recently rejected plaintiff's argument on this issue in its ruling in a separate FOIA case, finding that "'Congress enacted FOIA Exemption 5 . . . precisely because it determined that disclosure of material that is both predecisional and deliberative does harm an agency's decisionmaking process.'" The court finds that "under the standard clarified and applied by the D.C. Circuit in McKinley [v. Board of Governors of the Federal Reserve System], [the documents at issue] are deliberative: they are internal documents that were 'provided to . . . senior policymakers to assist in their deliberations' regarding FHFA's oversight of the Enterprises" and notes that plaintiff "does not contend otherwise." The court notes that "'[t]he deliberative process privilege does not protect documents in their entirety; if the government can segregate and disclose non-privileged factual information within a document, it must." Here, though because FHFA has claimed the attorney work- product privilege in addition to the deliberative process privilege, and given that the privilege does not require segregation, "to determine whether FHFA has properly withheld the entirety of both documents, the Court must determine whether they are protected work product."
The court finds that "the essential question here is whether these records were prepared in anticipation of litigation." Despite plaintiff's argument to the contrary, the court agrees with FHFA that the fact the records at issue serve dual policy and litigation purposes "does not automatically preclude [them] from passing the anticipation-of-litigation test." The court finds that "[w]here a document has a non-litigation component, the key question is whether it 'would have been created in essentially similar form irrespective of the litigation.'" Here, the court concludes that "FHFA's affidavits are insufficient to establish that the documents would have been created in essentially the same form irrespective of the litigation." Therefore, the court "order[s] the FHFA to produce the two documents for in camera inspection."
Reno Newspapers, Inc. v. U.S. Parole Comm'n, No. 09-683, 2011 U.S. Dist. LEXIS 33957 (D. Nev. Mar. 29, 2011) (Reed, J.). Holding: Granting in part and denying in part plaintiff's motion for summary judgment and defendants' cross-motion for summary judgment. Defendants adequately showed that the communications withheld pursuant to the deliberative process privilege where "both predecisional and deliberative" in nature. As such, the court rejects plaintiff's contention that the agency failed to "allege[ ] any facts to show that the deliberative process would be compromised." With respect to plaintiff's argument that lapse of time between the creation of the requested documents and the FOIA request for those records "is material," the court notes that "FOIA protection . . . does not come with an expiration date." "To impose a time limit on the protection for communications involving an agency's deliberative process would effectively eliminate the incentive for the frank and open discussion of ideas that Exemption5 is intended to engender."
ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (Lasnik,J.). Holding: Granting in part defendant's motion for summary judgment and ordering supplemental Vaughn index or disclosure. The court finds that the FBI properly invoked the deliberative process privilege to withhold two documents which "discuss various proposals for how to respond to attempts by persons on the watchlist to purchase firearms." The court notes that "the fact that the FBI was already making changes to its procedures when [one of the documents] was written does not preclude a finding that these documents were pre-decisional." Additionally, the FBI properly withheld four other documents that "are drafts that do not reflect final agency decisions" and "are integral parts of an on-going decision-making process within the agency."
N.Y. Civ. Liberties Union v. DHS, No. 09-5325, 2011 U.S. Dist. LEXIS 24436 (S.D.N.Y. Mar. 10, 2011) (Koeltl, J.). Holding: Granting government's motion for summary judgment with respect to Exemptions 7(E) and 5 and denying motion for in camera review. The court finds that DHS properly asserted the deliberative process privilege to protect "an intra-agency memorandum drafted by a division of [DHS's National Protection and Programs Directorate] requesting FEMA's approval of an extension of time to complete certain steps of the grant funding process." Despite plaintiffs' argument to the contrary, the court finds that DHS is not required to show that "a document is predecisional by pinpointing a specific decision." Here, the court finds that the document was "'prepared in order to assist an agency decisionmaker in arriving at his decision' and 'bear[s] on the formulation or exercise of policy-oriented judgment.'" Moreover, DHS is not required to segregate any factual information, since that information is protected from disclosure under other exemptions.
Steiniger v. IRS, No. 10-282, 2011 U.S. Dist. LEXIS 22265 (S.D.N.Y. Mar. 3, 2011) (Francis, Mag.). Holding: Granting government's motion for summary judgment upon finding that searches were reasonable and documents properly redacted. EOUSA properly withheld "attorney notes that reflect the thought processes of an attorney prior to taking action in a criminal case" under the deliberative process privilege. Moreover, the court concludes that these same documents were also protected by the attorney work product doctrine because "[t]hey were prepared by attorneys in anticipation of litigation, the litigation being a criminal prosecution" and also determines that an additional document "is work product, as it is a form prepared by an Assistant United States Attorney in connection with plaintiff's prosecution."
Donnegan v. USPS, No. 10-706, 2011 WL 818871 (W.D. Pa. Mar. 2, 2011) (Ambrose, J.). Holding: Granting USPS's motion to dismiss where plaintiff does not contest defendant's claims of exemption and the court agrees with their applicability. The court grants USPS's motion to dismiss where plaintiff does not contest defendant's claims of exemption and the court agrees with their applicability. The court agrees with the USPS's invocation of Exemptions 2, 3 and 5 and cites to other court decisions which affirmed agencies' withholding of various employment application information and hiring criteria. The court denies plaintiff's request to review the exam material in camera, determining that "[p]laintiff cites no law for this 'scenario' and [the court] find[s] no support in the law for it either." The court concludes that "[p]ermitting a review of documents visually is, in essence, the same result as producing the document in hard copy."
Lazaridis v. DOJ, No. 09-1177, 2011 WL 652469 (D.D.C. Feb. 24, 2011) (Collyer, J.). The court holds that EOUSA properly asserted Exemption 5 to withhold "predominantly as attorney work product but also as deliberative process material" various records prepared by the U.S. Attorney's Office pertaining to plaintiff's "'pending kidnapping case.'" The court further finds that EOUSA properly withheld certain pages in full because "[t]he work-product privilege simply does not distinguish between factual and deliberative material [for segregability consideration]."
Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., No. 09-2436, 2011 WL 332541 (D.D.C. Feb. 3, 2011) (Huvelle, J.). Based on its in camera review of the documents at issue, the court concludes that the Board properly invoked Exemption 5 to withhold certain deliberative and pre-decisional communications, including memoranda, draft documents and other records containing recommendation and analysis. As an initial matter, the court rejects plaintiff's contention that "the Board must identify a specific decision corresponding to each [withheld] communication." Instead, the court citing the Supreme Court's decision in NLRB v. Sears, Roebuck & Co., notes that "'[o]ur emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared.'" The court also dismisses plaintiff's assertion that "only the early drafts of documents may be validly withheld pursuant to Exemption 5, and that once a memorandum become finalized it can no longer be 'predecisional.'" The court finds that "[s]uch a narrow view of Exemption 5 ignores the possibility, as here, that a memorandum may not represent final agency policy, but rather 'the staff's recommendations and advice regarding possible ways to proceed and consequences associated with proceeding in a certain manner.'"
However, with respect to a staff member's notes that were withheld in full, the court finds that Exemption 5 does not apply because "it is apparent that these notes do not reflect 'the writer's analytical views regarding the matters discussed'... but rather are a straightforward factual recounting of a meeting with representatives of foreign central banks, detailing what each of the participants said.
McKinley v. FDIC, No. 10-420, 2010 WL 5209337 (D.D.C. Dec. 23, 2010) (Sullivan, J.). The FDIC failed to demonstrate that certain "memoranda from agency staff to the Board of Directors" qualified for protection under the deliberative process privilege. The court finds that although the fact the memoranda were "dated the same day as the board meetings at which the final decisions were made" does not preclude them from being "predecisional," "'the agency must 'illustrate a chronology' in some way in order to justify predecisional withholding.'"
Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 5421928 (S.D.N.Y. Dec. 21, 2010) (Preiska, J.). With respect to an email written by an employee of the CIA's Office of Inspector General to another OIG employee summarizing a conversation between the writer and a federal prosecutor about which witnesses to call before a grand jury, the court notes that the parties are in agreement that the document is covered by the attorney work-product privilege because the "[i]t contains the mental impressions of a federal prosecutor about anticipated or ongoing litigation." The court finds that, to the extent that a second email contains identifying information of potential grand jury witnesses, it is also covered by the privilege.
Skinner v. DOJ, No. 09-725, 2010 WL 3832602 (D.D.C. Sept 30, 2010) (Friedman, J.). Attorney work product and deliberative process privileges: ATF properly withheld in full "'[e-]mails used in pre-decisional investigatory strategy in preparation for litigation'" which "'were prepared by ATF Special Agents and ATF attorneys'" and "pertained to 'legal implications of the investigation'" and contained "'candid discussion of the strengths and weaknesses of the [ATF's] case against the [p]laintiff.'" The court concludes the communications are protected by both the deliberative process and the attorney work product privileges because ATF "has established that the e-mail messages  are pre-decisional and deliberative, as the information pertained to a then-ongoing criminal investigation of plaintiff and others" and ATF "also has shown that the messages include attorney work product prepared in anticipation of criminal proceedings, as well as privileged conversations between an agency attorney and the agents investigating a case."
Budik v. Dep't of the Army, No. 09-1518, 2010 WL 3833828 (D.D.C. Sept. 30, 2010) (Kollar-Kotelly, J.). Deliberative process and attorney-client privileges: Defendant did not adequately demonstrate certain communications were protected by either the deliberative process or attorney-client privileges. The court notes that "[a]lthough defendant avers that one party to the communications at issue was military counsel, . . . Defendant has failed to present any evidence demonstrating the confidential nature of the communications, or showing that they were made for purposes of seeking or rendering legal advice." Furthermore, "while the 'drafts' referenced by the Defendant may very well fall within the ambit of the 'deliberative process' privilege, Defendant fails to describe the contents of those drafts or how they relate to a specific agency decision."
McKinley v. FDIC, No. 09-1263, 2010 WL 3833667 (D.D.C. Sept. 29, 2010) (Huvelle, J.). Deliberative process privilege: The court finds that certain factual information consisting of "financial statistics, pricing and exposure data, and the identities of various financial institutions" is protected under the deliberative process privilege. "[T]he Court is 'convinced' that disclosure of the requested 'factual summar[y] prepared [for] decisionmakers' 'would expose [the Board's] decisionmaking process in such a way to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.'" The court rejects plaintiff's assertion the defendant must show "'that disclosure of the withheld records or information would cause harm to its decision-making process.'" Rather, the court finds that "[h]aving established that the withheld documents were both 'pre-decisional' and 'deliberative,' defendant is not also required to establish that the release of the withheld documents or material would cause 'harm' to the decision-making process."
Attorney work product privilege: The Board properly withheld a "'draft affidavit . . . conveyed by a FRBNY attorney to Board attorneys'" pursuant to the attorney work product privilege. For one, the court finds that, despite plaintiff's argument to the contrary, "because FRBNY personnel were acting as consultants to the Board, the work product of an FRBNY attorney conveyed to the Board is properly withheld under Exemption 5." Additionally, the court dismisses plaintiff's argument that the Board failed "to show that there was 'some articulable claim, likely to lead to litigation,'" concluding that "'it was entirely reasonable for the Board to anticipate that it, and/or FRBNY, might be drawn into litigation by Bear Stearns shareholders, and to prepare for [that] possibility.'"
Threshold: As an initial matter, the court concludes that defendant has "more than satisfie[d] [its] burden to show that the records and information exchanged by the Board and the FRBNY were 'documents . . . submitted by non-parties in response to an agency's request for advice'" and, accordingly, meet the threshold of Exemption 5 under the "consultant corollary." In response to plaintiff's argument that "the FRBNY's interests diverge from the Board's interests," the court states that "the critical inquiry is not whether FRBNY's interests were at all times identical to the Board's , but rather whether the FRBNY 'd[id] not represent an interest of its own, or the interest of any other client, when it advise[d] the [Board].'" The court further notes that "[h]ere, the declarations and the documents adequately establish that the FRBNY was not representing an interest of its own when it advised the Board, but rather it was simply assisting the Board's evaluation of the Bear Stearns situation."
Cuban v. SEC, No. 09-0996, 2010 U.S. Dist. LEXIS 99664 (D.D.C. Sept. 22, 2010) (Walton, J.). Exemption 5 / deliberative process privilege: The SEC failed to adequately justify that internal e-mails and handwritten notes, which discuss the "'agency deliberations regarding the proposed discipline of an employee,'" qualify for protection under the deliberative process privilege. The court finds that "the defendant's declaration completely lacks any detail regarding any particular record and does nothing more than generally state that Exemption 5 is satisfied." Moreover, "[e]ven if these records indexed by the defendant contain such deliberations, . . . the Court cannot discern from the defendant's representations how these records could be completely withheld under Exemption 5." The court concludes that, based on the record before it, the SEC must redact and disclose any "factual information" or portions of the records that are not predecisional and deliberative in nature.
Attorney-client privilege: The court concludes that the SEC's declarations "are too conclusory" to determine whether internal e-mails containing legal advice and recommendations are covered by the attorney-client privilege. The agency bears the burden "'to demonstrate that confidentiality was expected in the handling of these communications,'" and that steps were taken to keep the records confidential. The court finds that "[t]he declarants' assertions that they lack any reason to believe that the records were 'released outside of the Commission' do not address the issue of whether those communications were 'circulated no further than among those members 'of the organization who are authorized to speak or act for the organization in relation to the subject matter of the communication.'" As such, the court holds that agency must provide additional proof in order to withhold the records pursuant to the attorney-client privilege.
Attorney work-product privilege: The SEC did not adequately demonstrate that certain records related to the discipline of an employee were shielded by the attorney work-product doctrine. The court concludes that "[t]he defendant must submit additional evidence that establishes that all of the communications were created with litigation in mind" regardless of whether litigation actually resulted from the personnel dispute.
ACLU v. DHS, No. 08-1100, 2010 U.S. Dist. LEXIS 98849 (D.D.C. Sept 20, 2010) (Walton, J.). Exemption 5/deliberative process privilege: The court finds that defendant 's "apparent inconsistent disclosures" of factual information in various records "do not amount to inconsistent application of the deliberative process privilege." "Rather, the record demonstrates that the OIG was careful to withhold identifying information only where it would, in context, identify the interviewee or reveal the mental processes of the OIG investigators because the investigators chose to include those facts in the report." The court likewise finds that defendants properly invoked the deliberative process privilege to protect memoranda prepared by the OIG inspectors "so as not to 'discourage the candid exchange of ideas, analyses, and perspectives that are required in order for OIG to conduct a thorough, comprehensive, and independent inspection or audit.'" However, regarding an e-mail "'drafted by [an anonymous] third party [and] provided to [the] OIG to offer additional information for [the] OIG's inspection,'" the court notes that "'in cases where there is no identifying information that would link an individual to a document '" the disclosure is unlikely "'to stifle honest communication within the agency.'" Furthermore, defendants' submissions fail to "state specifically why the wholesale redaction of this document is warranted, given that the identity of the author is unknown and any information that might make it possible to identify the author could be redacted."
With respect to "the Civil Rights Office's final report, expert report, and 'talking points,'" the court determines "[they] are all deliberative in that they reflect a discourse that occurred during the decision-making process concerning the Department's conclusions relating to [a detainee's] death and what strategy the Department should take regarding any litigation that may arise from the incident." The court further concludes that the talking points are also predecisional because "[t]he document itself suggests that a public statement was anticipated at the time of its creation, and given that no official statement has yet been made, the talking points remain ripe recommendations that are ready for adoption or rejection by the Department." However, the court finds that it is not apparent from the record whether the withheld reports "are pre-decisional" because "it is not clear . . . whether any decision was ever made by the Secretary to adopt the Civil Rights Office's recommendation," and they could theoretically "encapsulate final agency action."
Attorney-client privilege: The court finds that defendants did not adequately justify their assertion of the attorney-client privilege to fully withhold the Civil Rights Office's case memorandum, interview notes, and final report. The court concludes that "unless defendants can show that [certain] factual information conveyed between its counsel and its entities 'was not known by or disclosed to any third party,' the Court cannot grant summary judgment in their favor."
Gerstein v. CIA, et al., No. 06-4643, 2010 U.S. Dist. LEXIS 97766 (N.D. Cal. Sept. 17, 2010) (Chesney, J.). Deliberative Process Privilege: The court finds that OPR properly invoked Exemption 5 and released all reasonably segregated portions of the documents.
Fox News Network, LLC v. U.S. Dep't of the Treasury, No. 08-11009, 2010 U.S. Dist. LEXIS 94451 (S.D.N.Y. Sept. 2010) (Maas, Mag. J.). Threshold: The court finds that certain documents "exchanged between or among" Treasury and the New York Federal Reserve Bank (NYFRB), Morgan Stanley, Pricewaterhouse Coopers (PwC), Ernst and Young (E&Y) satisfy the "intra-agency" threshold of Exemption 5 in accordance with the "consultant corollary." The court concludes that NYFRB "functioned 'enough like' Treasury's own personnel during [certain loan] transactions 'to justify calling their communications 'intra-agency.'" Additionally, "PwC, E&Y, and Morgan Stanley . . . functioned as consultants in the more traditional sense; indeed, [plaintiff] does not seriously challenge their status as consultants to NYFRB." However, the court concludes that two email threads, in which "NYFRB is stating a preference for how. . . the transfer of funds to NYFRB  should be conducted," do not meet the Exemption 5 threshold because "NYFRB is not acting as a consultant, but, rather, was functioning as a party to the transaction negotiating with Treasury."
Deliberative Process Privilege: Treasury properly invoked the deliberative process privilege to protect "internal drafts of transactional documents" and documents reflecting "internal discussion as to the transaction terms." The court finds that "the decisions that Treasury made regarding the use of TARP monies and the structure of the transactions with AIG and Citigroup clearly are policy decisions" and, to the extent that they were created before the transaction was finalized and that they reflect internal deliberations, they can be considered predecisional and deliberative. Additionally, the court rejects plaintiff's claim that factual material can be segregated from those draft documents, finding that there is "no way to separate" that information and "[t]o the extent that the drafts contain language that did not exist in the final transactional documents, disclosure would reveal options that the agency did not select."
With regard to certain press releases, the court concludes that "[a]lthough opinions and recommendations regarding press inquiries do not qualify as deliberations about substantive policy decisions, disclosure of the various drafts of the press release at issue here would reveal how Treasury's deliberations with respect to the underlying substantive policy progressed over the course of several days." However, the court finds that a draft of the Secretary's remarks does not qualify for protection under the deliberative process privilege because the "actual document . . . does not appear to contain any suggested revisions that would be disclosed." Treasury properly withheld draft Congressional briefing materials which "do not merely reflect [its] decisions in relation to 'massaging' the agency's public image," but rather "reflects internal agency deliberation on matters of substantive policy prior to the Secretary's public announcement of those decisions." Conversely, the court finds that portions of a draft letter from the Secretary to Congressional leaders "[are] not predecisional (because [they] explain decisions previously made) and do not reflect deliberation on substantive policy-oriented matters." The deliberative process privilege is likewise found to be inapplicable to emails between Treasury and outside counsel related to public relations issues and press inquiries, as well as to a document providing guidance to Treasury staff on how to respond to press inquiries.
The court finds that memos involving "analyses and assessments of the financial condition of AIG and the effect that its collapse would have on the financial system" and "the impact of Treasury's proposed intervention" which "predate Treasury's final decision to invest in AIG" as well as "emails commenting on [those] memos" are predecisional and deliberative. Additionally, documents related to the drafting and revision of agency guidelines and a proposed interim final rule were properly withheld because they "clearly fall within the traditional scope of the deliberative process privilege." However, the court finds that the deliberative process privilege is not available for an "AIG implementation timeline" the purpose of which "is to ensure that everyone at Treasury is on the same page with respect to the administrative details of the fast-moving AIG transaction," or for an "redacted email [that] consists of a factual recitation from a Treasury official, relaying information obtained from NYFRB," or for conference call agendas.
The court concludes that "email threads [that] relate to the final terms of the AIG trust instrument,""draft determination memoranda" regarding financial institution's eligibility for TARP funding, and discussion materials prepared by NYFRB and Morgan Stanley for Treasury all qualify for protection because they predate agency's final action and are deliberative in nature. The court holds similarly for emails discussing an AIG executive's compensation and those "discuss[ing] the creation of a data request to be sent by Treasury to Citigroup in order to collect information about Citigroup's compensation plans." Other emails were ordered disclosed when the court found that Treasury had not met its burden to show that they were deliberative and/or predecisional.
Judicial Watch, Inc. v. DHS, et al., No. 07-506, 2010 WL 3564260 (D.D.C. Sept 9, 2010) (Leon, J.). The court concludes that DOJ properly asserted the deliberative process privilege to withhold "email messages involving recommendations and evaluations for how to respond to Congressional and media requests for information on [the subject's] legal entry into the United States and the grant of immunity to him," which were exchanged within DOJ and between DOJ and DHS employees. Even though the emails post-date the original grant of immunity to the subject, the court finds that "because these documents [were] generated as part of a continuous process of agency decision making, viz., how to respond to on-going inquiries, they are pre-decisional" and deliberative. Applying a similar rationale, the court also concludes that "emails discussing [the subject's] legal entry into the United States," which post-date his incarceration, also qualify for protection under the deliberative process privilege.
The court finds that "email messages from a DHS special agent to a DHS [Office of Inspector General] attorney seeking confidential legal advice regarding the way in which [the subject] entered into the United States" "clearly fall within the protection of the attorney-client privilege."
DOJ properly invoked the attorney-work product privilege to protect various records that "involve[d] the details of an AUSA's preparation for a criminal prosecution." With respect to certain documents created post-prosecution that contained discussions of how to respond to Congressional and media inquires, the court finds that records "contained internal deliberations that included consideration of privileged attorney work-product from the prior prosecution" and were properly withheld pursuant to the attorney-work product and deliberative process privileges.
Attorney-client privilege: The court determines that various email threads summarizing an attachment, containing factual predictions, discussing factual questions and the handling of press inquiries, relaying non-substantive communications are not protected by the attorney-client privilege because they are not for the purpose of seeking or furnishing legal advice. By contrast, documents containing legal advice related to "the propriety of AIG's lobbying policies in light of its request for government assistance," "legal analysis of edits suggested by AIG's counsel," and legal consequences or impacts related to certain courses of action were properly protected by the attorney-client privilege.
Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.). The court finds that the CIA properly invoked the deliberative process privilege to withhold notations made on correspondence with Congress, because "Exemption 5 is not invoked to withhold the letter itself (which is withheld pursuant to Exemptions 1 and 3), but to withhold the handwritten notes from the reviewing official who was commenting on the letter received from the member of Congress." The court also concludes that the assertion of "Exemption 5, standing alone" would not protect a deliberations "from foreign-liaison to CIA attorney" and "from CIA Executive Director to Member of Congress" because they would not meet the intra- or inter-agency threshold of the exemption. With respect to the other records for which Exemption 5 was invoked, including draft documents, the court finds that the CIA's submissions "detail how the withheld documents were prepared to assist [agency] decisionmaking on [ ] specific issue[s]."
Regarding the CIA's assertion of the attorney-client privilege, the court determines that the description provided in the Vaughn index for some of the documents "are conclusory and lack sufficient detail to merit withholding." However, other entries "show that these documents reflect confidential communications or legal advice." The court directs the CIA to prepare a supplemental Vaughn index for certain documents for which the attorney-client privilege is not sufficiently justified and that are not covered by other exemptions.
The court concludes that the CIA's descriptions for the majority of documents withheld pursuant to the attorney work-product privilege is "too general." However, the deficiencies in the CIA's submissions "proves to be inconsequential" because many of the documents are properly withheld in full under other exemptions.
Regarding documents for which the presidential communications privilege was invoked, the "Court finds that all twenty documents reflect or memorialize communications between senior presidential advisers and other United States government officials and are therefore properly withheld."
Williams & Connolly LLP v. SEC, No. 09-651, 2010 WL 3025030 (D.D.C. Aug. 4, 2010) (Kollar-Kotelly, J.). The court rejects plaintiff's argument that the SEC "'waived the work product privilege as to [the] entire subject matter of handwritten notes'" that were generated in the course of its investigation of third parties by producing them during the criminal prosecution of plaintiff's client. The government's disclosures, which were required by Federal Rule of Criminal Procedure 16, were made "because they were material to [the client's criminal] case." The court declines to extend waiver "to all handwritten notes made by the SEC regarding meetings with [third parties] and their counsel, regardless of the subject matter of those notes [because] this could result in the disclosure of any aspect of the SEC's investigation and reveal the SEC's litigation strategy." The court adds that "[t]o the extent that Plaintiff claims the SEC has waived its privilege about a specific document that was disclosed [in connection with its client's criminal case], such a disclosure renders Plaintiff's FOIA request for that document moot." Additionally, the court emphasizes that "the disclosures on which Plaintiff's waiver argument is premised were made during a criminal prosecution brought by the Department of Justice, not by the SEC" and, as such, are not considered a waiver of SEC's privilege.
Furthermore, where the records "reflect opinions by agency staff that are predecisional and deliberative in nature," "the SEC's withholding of deliberative material in these handwritten notes may alternatively be justified under the deliberative process privilege." Despite plaintiff's argument to the contrary, "[t]he fact that there are no recipients listed on the Vaughn index does not render them non-deliberative; the courts have held that a document may be deliberative even [when] it is not circulated to other employees."
Fischer v. DOJ, No. 07-2037, 2010 WL 2745811 (D.D.C. July 13, 2010) (Huvelle, J.). The court determines that the FBI properly asserted the deliberative process privilege to protect drafts of a settlement agreement related to plaintiff's criminal case which were prepared by the U.S. Attorney's Office. The FBI adequately described the role of these documents in the deliberative process. The FBI's declaration explained that the drafts "were part of the government's negotiations and preparations for a final settlement agreement, and as a result of their advisory nature their release could affect employees' candor with their colleagues on similar matters in the future." The drafts "are predecisional because, as proposed terms for a document which the government would later sign, they had a concrete role in a decision-making process." Lastly, the court concludes that "the redacted terms composed advice and not facts, thus constituting deliberative material."
Dolin, Thomas & Solomon LLP v. U.S. Dep't of Labor, No. 08-9181, 2010 WL 2607153 (W.D.N.Y. June 30, 2010) (Larimer, J.). The court determines that DOL cannot rely on the deliberative process privilege to protect "enclosure and status-listing letters" where it appears that "what has been excised is nothing more than dispassionate and brief references to the status of the opinion letters" and that "[n]othing in the context of the redactions or the adjacent material suggests that the redactions could possibly reflect 'the give-and-take of the consultative process.'" Additionally, these letters do not qualify for protection under the attorney-client privilege because they were not "sent by or between agency counsel for the purpose of requesting or rendering legal advice." With respect to records containing the DOL's "generalized procedures for responding to opinion letter requests and drafting opinion letters," the court concludes that "any communications . . . which were not made in connection with the agency's requests for or receipt of legal advice, and which outline the agency's generalized procedures for creating opinion letters . . . are not subject to the deliberative process privilege and must be disclosed."
The court holds that DOL properly withheld drafts of the opinion letters because "[t]o the extent that the letters are identical to the DOL's final determination, they are duplicative of information already produced to plaintiff, and to the extent they differ, they pose a substantial risk of confusing the public, and/or intruding on the deliberative process privilege by revealing the DOL's chain of reasoning."
The court concludes that DOL cannot withhold "communications containing legal orders, advice, discussion and interpretations of internal DOL policies which govern opinion letter decision-making" to the extent those communications "pertain to the decision-making process generally utilized by DOL, are not specific to the opinion letters at issue, and are not otherwise subject to the attorney-client privilege." DOL also cannot withhold prior published opinion letters and legal research materials in full because they "[do] not reflect DOL's deliberations concerning the [opinion] letters" at issue. However, the agency may redact "handwritten notations or passages [on those pages] drafted by or to counsel in connection with a request for legal advice." Lastly, the court finds that DOL properly withheld "e-mail communications by and between attorneys in the Office of the Solicitor and employees in the Wage and Hour Division concerning the drafting of opinion letters" pursuant to the attorney-client privilege because these communications "were made for the purpose of requesting or rendering legal advice."
Meza v. DOJ, No. 09-1580, 2010 WL 2572613 (D.D.C. June 25, 2010) (Kollar-Kotelly, J.). The court finds, that based on the agency's declaration, "DOJ properly justified withholding eight pages in full containing attorney work product and deliberative process material." The court also adds that "'[i]f [as shown here] a document is fully protected as work product, then segregability is not required.'"
Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2010 WL 2532649 (D.D.C. June 24, 2010) (Bates, J.). The court finds that a document containing "an email exchange among Corps regulatory personnel, public affairs officers, and legal counsel that 'discusses guidelines regarding presenting the ongoing enforcement investigation to the press'" does not qualify for protection under the attorney-client privilege. The agency's submissions fail to establish "that the purported 'legal advice' was conveyed 'as part of a professional relationship in order to provide [the Corps] with advice on the legal ramifications of its actions'" or indicate that the "advice was kept confidential." The court also concludes that the attorney-client common interest privilege does not apply to records containing "privileged communications from [Maryland's] Anne Arundel County employees to their attorney that [were] then shared with Corps officials" because "the Corps has not shown that it has an attorney-client relationship with counsel from Anne Arundel County or the county itself." Additionally, the court is unable to assess the applicability of the deliberative process privilege because the agency's declaration "describes the discrete [regulatory enforcement] activities of the investigators and state officials, but fails to situate them in the 'give-and take' of the decisionmaking process" and, in fact, "does not explain the process at all." For example, the agency's submissions are not clear as to "whether an investigator's enforcement recommendations are ever incorporated into the Corps's final policy." Because the agency's third Vaughn index and supplemental affidavit were not sufficient to cure deficiencies in its prior submissions, the court "will require the Corps to disclose those records that have been withheld under the deliberative process privilege."
Citizens for Responsibility & Ethics in Wash. v. NARA, No. 07-0048, 2010 WL 2265036 (D.D.C. June 7, 2010) (Walton, J.). Based upon an in camera review, the court determines that NARA properly asserted the attorney work-product privilege to withhold certain pages in full because the documents "appear to have been prepared in anticipation of litigation, and as discussed in the Court's earlier opinion, the defendant's anticipation that litigation would occur was reasonable." The court declines to decide whether those pages had also been properly withheld under deliberative process privilege. Additionally, after conducting in camera inspection of one page for which only the deliberative process privilege was invoked, the court concludes that the supplemental declaration resolved its concern that the defendant's initial Vaughn index was unclear as to "whether the document was 'drafted by [the defendant] in formulating policy' and 'what role the document[ ] played in the administrative process.'" With respect to an additional page withheld in part, the court finds that NARA properly asserted the deliberative-process privilege where "the initial declaration indicated that the document was deliberative" and now the "additional declaration indicates that it is predecisional as well."
Vento v. IRS, No. 09-289, 2010 WL 2181312 (D.D.C. June 2, 2010) (Facciola, Mag. J.). IRS withheld documents that "are clearly communications to or by an attorney and relate to advice on the legal ramifications of agency action." "Plaintiffs also argue that factual information should be segregated and disclosed. . . . On this point, plaintiff is incorrect. Factual information provided by the client to the attorney is the essence of the privilege." For one document, IRS appears to have claimed this privilege inadvertently, when it should have claimed another exemption; IRS is ordered to submit further briefing to the court on this document.
The court further finds that IRS properly withheld under the attorney work-product privilege (and Exemption 7(E)) a memorandum which "provid[es] litigation guidelines for enforcing IRS summonses." Disclosure of this document "'could provide parties who do not wish to comply with the summons with information they could use to fight or otherwise circumvent the summons.'"
Plaintiffs claim that defendant improperly invoked the deliberative process privilege, speculating that some of the withheld documents contain agency working law, and are therefore not predecisional. However, the court "cannot find that the exemption was improperly [applied] on mere speculation."
Am. Fed'n of Gov't Employees, Local 812 v. Broad.Bd. of Governors, No. 09-1191, 2010 WL 1976747 (D.D.C. May 18, 2010) (Huvelle, J.). BBG properly asserted these privileges to withhold documents that reflect internal deliberations concerning the request of one of the plaintiffs for access to BBG facilities.
FPL Group, Inc. v. IRS, No. 09-652 (D.D.C. May 14, 2010) (Huvelle, J.). Exemption 5 (deliberative process privilege)/Litigation considerations: Upon in camera review, the court determines that defendant's use of this privilege was appropriate. Plaintiff wrongly claims that defendant may not assert the deliberative process privilege for the first time, having only asserted the attorney work-product privilege previously. Though an agency may not invoke an exemption for the first time after a ruling in a plaintiff's favor, the agency is not invoking Exemption 5 for the first time here, it simply "articulated an additional basis for asserting [it]." Furthermore, the court's prior order, requiring additional submissions by defendant and in camera review by the court "was not a ruling in plaintiff's favor. A denial of a defendant's motion for summary judgment is not 'tantamount to a ruling in [the plaintiff's] favor,' especially where the plaintiff's own motion for summary judgment is not granted."
Brown v. EEOC, No. 09-111, 2010 U.S. Dist. LEXIS 46466 (W.D. Ky. May 12, 2010) (McKinley, J.). EEOC properly withheld documents which contain an EEOC employee's "preliminary opinions, analysis, and recommendations about the strength of Plaintiff's [employment discrimination] charge and the possibility of achieving resolution of the charge." The court finds that the withheld material is "clearly predecisional and relate[s] to the EEOC's internal decisionmaking process. Disclosure of this information would reveal an EEOC staff member's analysis and could have a chilling effect on the agency's discussions of such matters and undermine the agency's ability to perform its duties."
Morley v. CIA, No. 03-2545, 2010 WL 1233381 (D.D.C. Mar. 30, 2010) (Leon, J.). The CIA's new declarations have provided sufficient information for the court to determine that its use of this privilege was proper. Defendant has now explained that withheld information "included 'recommendations concerning the waiver of certain reinvestigation methods and practices.' Clearly, the CIA's description of this information is sufficient to demonstrate that what was withheld indeed concerned 'pre-decisional' deliberations. . . . Moreover, these kinds of deliberations are precisely the type covered by the deliberative process privilege." Plaintiff's "objection that this information is not protected because its disclosure would not be 'likely in the future to stifle honest and frank communication within the agency' is simply incorrect. . . . [T]he privilege is not intended merely to prevent embarrassment to those who took part in a given deliberation; . . . it is also intended to prevent chilling future government employees from engaging in frank discussions during the deliberative process. Second, [plaintiff] is simply too speculative when he argues that the appearance of the term 'OK' on one of the documents renders it final rather than pre-decisional."
As to other materials withheld under this exemption, "there is more than enough detail for the Court to determine that what was withheld pertained to pre-decisional consideration of [the former agent's] suitability for employment. Because discussion of an employee's suitability is no doubt part of the 'give-and-take of the consultative process,' it is 'deliberative' and thus subject to the privilege."
Vento v. IRS, No. 08-159, 2010 WL 1375279 (D.V.I. Mar. 31, 2010) (Sanchez, J.). "[The deliberative process privilege clearly applies to the communications the revenue agent made in preparing for and conducting examinations of Plaintiffs, because such communications include the deliberations by various IRS and DOJ personnel about what strategies to pursue in Plaintiffs' tax case. Plaintiffs' contention these communications reflect the 'working law' of the IRS are misplaced, as these are not final statements of policy by top officials such that they constitute the 'opinion of th[e] office.' . . . Similarly, Plaintiffs' contention that they are entitled to the 'facts' contained in these communications is misplaced because such facts may be withheld if 'they would indirectly reveal the advice, opinions, and evaluations circulated . . . as part of [the] decisionmaking process.'"
Defendant properly assert[ed] the attorney-client privilege "to withhold correspondence between the revenue agent and the Office of Chief Counsel and the DOJ on developments in the examination and interpretation of law." The court finds that "the bulk of the communications . . . relate to a legal matter, Plaintiffs' tax liability, as to which the revenue agent was seeking advice. However, Plaintiffs correctly note items three and four in Appendix B do not involve communications to or from an attorney, and therefore cannot be exempt under the attorney-client privilege." Defendant is ordered to disclose these items "unless they are subject to another privilege."
The IRS invoked the attorney work-product privilege to withhold documents it claims were created "in response to petitions to quash third party summonses filed by Plaintiffs and third party taxpayers." As to five of the withholdings challenged by plaintiffs, the documents "relate to work done by the IRS and DOJ attorneys in connection with building a tax liability case against Plaintiffs, and thus are properly subject to the work-product privilege even though they may have occurred before litigation formally began. However, items three and four in Appendix C do not appear to involve work-product created by an attorney in anticipation of litigation and therefore are not exempt."
UtahAmerican Energy, Inc. v. U.S. Dep't of Labor, No. 08-1791, 2010 WL 1252863 (D.D.C. Mar. 31, 2010) (Leon, J.). (Machin privilege): This privilege, cited by defendant, covers confidential statements made to government air crash safety investigators. Defendant reads the privilege as extending to a more generalized "accident investigation privilege," but there is no support in prior precedent for extending the privilege beyond the air crash investigation setting. Thus, DOL cannot rely on Exemption 5 to withhold portions of the IRT transcripts.
Gov't Accountability Project v. U.S. Dep't of State, No. 08-1295, 2010 WL 1222156 (D.D.C. Mar. 29, 2010) (Leon, J.). The court finds that documents created by a contractor hired by defendant meet the Exemption 5 threshold, even though the contractor was hired to provide advice and assistance to FF, and not to the State Department itself, directly. "[I]t is obvious that the Eurasia Foundation acted as a consultant to the State Department, and not in any adversarial capacity that would negate the consulting relationship."
As to defendant's use of the deliberative process privilege, "[i]t is apparent that [the] documents [withheld pursuant to the deliberative process privilege] are pre-decisional. Furthermore, the descriptions of these documents indicate that they contain advice and recommendations that were an integral part of identifiable decisional processes and were deliberative in nature. . . . Plaintiff's argument that the defendant failed to produce a specific decision for any of the documents is unconvincing in light of the specific decisions clearly at issue for each of the challenged documents. In addition, I agree with defendant's assertion that disclosure of this information is likely to interfere with the candor necessary for open and frank discussions on the defendant's preferred course of action regarding the FF."
Trentadue v. CIA, No. 08-788, 2010 U.S. Dist. LEXIS 29324 (D. Utah Mar. 26, 2010) (Waddoups, J.). Defendant appropriately withheld several memos from CIA attorneys to DOJ attorneys related to prosecution efforts in light of the Oklahoma City bombing. Plaintiff incorrectly asserts that Exemption 5 is limited to the attorney-client privilege. While the court agrees with plaintiff "that facts are not covered by the work product doctrine . . . how the CIA attorney described the records and his or her mental impressions of them . . . would not have been subject to discovery." Plaintiff is further incorrect in his assertion that the CIA was required to segregate out and release factual materials, "because attorney work product 'shields both opinion and factual work product from discovery.'"
Banks v. DOJ, No. 06-1950, 2010 WL 1172593 (D.D.C. Mar. 26, 2010) (Sullivan, J.) (parties' motions for summary judgment denied without prejudice). Exemptions 2, 3, 5, 6, 7(C), 7(D), & 7(E): The court finds that USPIS has not adequately justified its decision to invoke these exemptions to withhold records. Defendant's Vaughn index "falls short . . . both in its failure to discuss the nature or type of information withheld and its tendency to restate the statutory language of the exemptions claimed as its sole justification for withholding the relevant information. The accompanying declaration offers no additional information to compensate for the Vaughn index's deficiencies." USPIS's declaration repeatedly fails to establish that its withholdings were consistent with statutory standards.
Long v. DOJ, No. 06-1086, 2010 U.S. Dist. LEXIS 28751 (N.D.N.Y. Mar. 25, 2010) (Mordue, C.J.). The court finds that defendant has not provided sufficient detail to justify its decision to withhold a field that reflects the amount of damages one party seeks, either when this amount has been formally stated by the plaintiff, or is merely an estimate by a DOJ attorney of what a plaintiff will seek. "Defendant does not explain what disclosure of the information in the 'government exposure amount, based on attorney estimate,' 'monetary value for undisposed event awarded to the opposition' fields would reveal; it states only that they 'reflect the mental impressions of attorneys regarding particular cases.' Thus, the court has no factual basis on which to assess how the amounts are determined, what the amounts are based on, and how they relate to the litigation process." Furthermore, defendant "has failed to indicate the proportion of exempt and nonexempt information in any of the declarations on which it relies." Defendant will be given an opportunity to file a renewed declaration. Similarly, defendant has not provided enough information for the court to determine whether it appropriately withheld a data field indicating the amount of damages considered punitive in a given case.
The court finds that defendant appropriately withheld, as attorney work-production information, attorney time records reflecting the amount of time DOJ attorneys have expended on ongoing cases. Defendant's "declarations show that the time records reflect the intensity of the government attorneys' efforts in handling individual cases. This information would reveal to opposing parties the amount of time the government's attorneys were spending on particular cases and provide insight into the government's litigation strategy at future stages." Plaintiff's argument that such information should be revealed as to certain allegedly completed "stages" of open cases does not account for the fact that these ostensibly completed stages may still be contested by the parties.
Conversely, defendant has not provided enough information for the court to determine whether it appropriately withheld fields containing "'notes either input directly by attorneys or based on contractor interviews with attorneys,'" that "'relate to litigation activities and can contain an attorney's thoughts and legal analysis of a case.'" "[D]efendant offers no specific description of what an attorney note might contain . . . or any examples of what 'other information which cannot be entered in the CASES data fields' might consist." Thus, plaintiff has not been afforded sufficient opportunity to challenge defendant's withholding decisions as to these records. Defendant will be given an opportunity to supplement its submissions on this issue.
Schmidt v. Shah, No. 08-2185, 2010 U.S. Dist. LEXIS 25539 (D.D.C. Mar. 18, 2010) (Kollar-Kotelly, J.). The "evidence clearly shows that the documents withheld or redacted constitute legal advice or communications with agency counsel regarding either [plaintiff's] legal proceedings or the agency's use of Iraq funds. Thus the agency had a reasonable basis for withholding or redacting information based on the attorney-client and attorney work-product privileges pursuant to Exemption 5."
FPL Group, Inc. v. IRS, No. 09-652, 2010 WL 890219 (D.D.C. Mar. 12, 2010) (Huvelle, J.). The IRS properly asserted the deliberative process privilege to withhold in full draft memoranda pertaining to its ultimate revenue ruling pertaining to plaintiff, except as to two pages where the IRS's description of the documents and their connection to agency deliberations is insufficient. Similarly, defendant has not provided sufficient information to justify its withholding in part of 39 redacted pages. The IRS will produce the two withheld in full pages and the 39 redacted pages for in camera review along with an affidavit explaining any claimed basis for withholding.
As to a set of 265 pages for which defendant claimed the attorney work-product and attorney-client privileges, the IRS has satisfied its burden as to 235 of those pages. However, as to 30 pages from this group, the IRS has only claimed that the documents were "prepared 'during' active litigation." This is insufficient for purposes of Exemption 5, because it does not establish that the documents were created "in anticipation of" or "for" litigation. Similarly, defendant has not provided enough detail for the court to determine if these documents were subject to the attorney-client privilege. Defendant must provide these documents for in camera review, along with an affidavit explaining any withholdings. As to another set of documents, several of the documents do not appear to meet the Exemption 5 threshold, because they were submitted by an outside party. As to other documents, for some of them defendant has provided sufficient information to justify its use of the deliberative process privilege, but has failed to do so for others. The appropriately described documents include "'notes taken by employees in internal meetings' or documents 'exchanging thoughts and opinions about various legal and policy decisions.'" The IRS also appropriately withheld draft documents. Conversely, "defendant has failed to satisfy its burden with respect to eight documents whose descriptions suggest that they could contain unprivileged agency working law, particularly because they may 'concern specific taxpayers or classes of taxpayers.'" The IRS also "has too vaguely described 62 documents as 'regarding' the proposed revenue ruling or agency attorneys' 'comments' on or 'concerns,' 'problems,' or 'issues' with that proposal. Plaintiff correctly observes that these descriptions do not permit the Court to determine whether the documents '"discuss the wisdom or merits of a particular agency policy"' or '"simply explain and apply established policy."'"
Additionally, "[d]efendant . . . also fails to describe the contents of six sets of handwritten notes that were redacted from documents provided by non-governmental entities. [Defendant's] declaration that members of the drafting team wrote these notes 'during' - i.e., concurrently with - the [policy guidance creation] process is insufficient to establish the role of these notes in that process." Defendant's submissions are similarly lacking with regarding to other sets of handwritten notes. The IRS also did not meet its burden with regard to another document because it did not adequately describe the decisionmaking process or the role in that process of the memo's author.
Finally, defendant did not sufficiently justify its use of the attorney work-product privilege as to eight documents. "[I]t is not enough that these documents involve 'discussions' among agency employees 'regarding' . . . litigation, the revenue ruling, or future related litigation; rather, the documents must have been prepared 'for' or 'in anticipation of' litigation. . . . The privilege log's descriptions of these eight documents also say nothing about whether they were created for or in anticipation of litigation."
Gerstein v. CIA, No. 06-4643, 2010 U.S. Dist. LEXIS 15578 (N.D. Cal. Feb. 23, 2010) (Chesney, J.). "The Court finds OPR's Vaughn Index is sufficient to demonstrate that [3 documents] constitute predecisional documents reflecting OPR's internal deliberative process in handling 'leak' investigations. . . . OPR has not, however, sufficiently supported its assertion that the documents contain 'no reasonably segregable information that could be released.'" The court reaches the same conclusion as to several other documents withheld in full. OPR is given an opportunity to submit new filings on the issue of segregability of factual material. As to several documents withheld in part, the court finds that OPR appropriately utilized Exemption 5.
Harrison v. BOP, No. 07-1543, 2010 WL 374529 (D.D.C. Feb. 3, 2010) (Friedman, J.). The court previously found that defendant had not adequately justified its use of this exemption to withhold four pages. Defendant's supplemental declaration explains that the pages in question were an investigation memorandum prepared by the Warden, that the investigation was undertaken in reasonable anticipation of litigation, that the memorandum was "provided to Regional Counsel in anticipation of litigation," and that release "'would tend to inhibit open and frank communication between Bureau of Prisons employees.'" The attorney-client privilege "exists to protect 'open and frank communication' between counsel and client, and . . . both counsel and client in this case are 'Bureau of Prisons employees.'"
Chesapeake Bay Found., Inc. v. U.S. Army Corps of Eng'rs, No. 09-1054, 2009 WL 5159756 (D.D.C. Dec. 30, 2009) (Bates, J.). The court concludes that the agency has not sufficiently justified its assertion of Exemption 5. The agency's declaration, which states "only that '[r]ecords relating to the deliberative process privilege within the Corps or between the Corps and the Maryland Department of Environment were flagged for potential withholding under Exemption 5,'" "provides no basis for concluding that the withheld information is either predecesional or deliberative."
Yonemoto v. VA, No. 06-0378, 2009 WL 5033597 (D. Haw. Dec. 22, 2009) (Kurren, Mag.). Based on its in camera review, the court determines that the deliberative process privilege applies to two e-mails in which "the Interim Director of the VA in Hawaii candidly discusses how to proceed with funding relocating employees and with future letters from the Department of Labor." The court notes that "[t]hese communications appear to have assisted the Interim Director in arriving at a decision on how to address the issues" and finds that "exposing the discussions could discourage candid dialogues in the future." Plaintiff "fails to address" these e-mails as well.
Hussain v. DHS, No. 07-1633, 2009 WL 4884019 (D.D.C. Dec. 18, 2009) (Friedman, J.). The court finds that "DHS does not provide explanations for its withholdings under Exemption 5 that are tailored to the content of the individual documents." With respect to documents withheld pursuant to the deliberative process privilege, "DHS's failure to include the dates of the documents or their authors or recipients makes it even more difficult for the Court to determine whether Exemption 5 was appropriately applied. . . ."
Wilson v. U.S. Air Force, No. 08-324, 2009 WL 4782120 (E.D. Ky. Dec. 9, 2009) (Hood, J.). The court determines that the Air Force properly asserted the deliberative process privilege of Exemption 5 to protect pre-decisional and deliberative material. The Air Force's redaction of an "action" block on a summary sheet was appropriate "[b]ecause the redacted information is merely a suggestion or recommendation – not the agency's final decision. . . ." Likewise, portions of an intra-agency memorandum containing "analysis, findings and recommendations" related to the disposition of plaintiff's ethics complaint, were properly redacted under Exemption 5. The court reasons that the memorandum "was not a final agency decision, it was merely an investigative report" provided to the Judge Advocate General who ultimately made the decision to dismiss plaintiff's ethics complaint. Additionally, "[d]isclosure of this information would discourage candid discussion by Committee members and undermine the agency's ability to perform its duties." The court also finds that a two-page memo from the Judge Advocate General to the Air Force Office of Professional Responsibility pertaining to the ethics complaints was properly withheld. The memo, which contained preliminary opinions, analysis and recommendations, is covered by the deliberative process privilege because it was "not a final action by the agency and disclosure of such opinions and recommendations could have a chilling effect on the agency's discussions of such matters."
Wolfson v. United States, No. 09-0304, 2009 WL 4186045 (D.D.C. Nov. 30, 2009) (Huvelle, J.). Defendant properly invoked Exemption 5 and these two privileges to withhold information whose disclosure "would reveal the attorneys' thought processes and litigation strategy and would reveal the agency's deliberations prior to the decision to seek authorization for continued monitoring of oral communications."
Adamowicz v. IRS, No. 08-10255, 2009 WL 4277237 (S.D.N.Y. Nov. 24, 2009) (Preska, C.J.). The court finds that the IRS properly invoked the deliberative process privilege. It did so to protect documents that "temporally precede and relate to specific agency decisions" and "reflect the consultative process underlying the IRS's decisions." Plaintiffs' assertion that the withheld documents "constitute the execution of previously formed policies" is incorrect. The IRS also appropriately invoked the attorney-client privilege to protect several different types of documents. In all cases, the court finds that the documents reflected communications between an attorney and a client (or, in one case, the client's notes memorializing such communications), which were undertaken for the purpose of providing legal advice, and in which there was an expectation of confidentiality. Plaintiffs' objections to the use of this privilege "rang[e] from the frivolous to the outright misleading." Finally, defendants properly utilized the attorney work-product privilege to withhold documents prepared by an agency attorney "in connection with . . . ongoing litigation." All of the withheld documents "contain discussions of the 'ramifications of facts, strategy, mental impressions or personal beliefs. . . .'"
Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 07-2074, 2009 U.S. Dist. LEXIS 109303 (D.D.C. Nov. 23, 2009) (Leon, J.). Defendant properly withheld "non-binding, pre-decisional, deliberative recommendations [provided] to the State Department to use in determining import restrictions." The State Department also appropriately invoked the deliberative process and attorney-client privileges to withhold an e-mail "seeking legal approval of a draft document and portions of an action memorandum containing summaries of legal advice." Though a committee official has asserted "that the release of the information here would result in the committee making better recommendations," this individual's "personal opinion does not alter the State Department's proper invocation of exemption (b)(5)." Finally, defendant also properly withheld some factual material "'where its very inclusion in the report represents the deliberative distillation of the information provided to the committee '" and the "selection of facts . . . compose[s] the reasoning of the committee in reaching its recommendation."
Hall v. CIA, No. 04-00814, 2009 WL 3768002 (D.D.C. Nov. 12, 2009) (Kennedy, J.). The CIA has not sufficiently justified its use of the deliberative process privilege. "Merely asserting that the documents are 'pre-decisional' without explaining to what pending decisions they related or making clear whether they 'make recommendations or express opinions on legal or policy matters,' . . . is insufficient. Insofar as the memorandums indicate that certain decisions about searches or fees had already been made, they do not fall within exemption 5." Defendant must either disclose these documents or provide sufficient justification for withholding them. As to other documents withheld, the CIA has sufficiently justified its use of the privilege. Defendant has not provided sufficient information for the court to determine whether it properly invoked the attorney-client privilege. In particular, the court cannot determine whether all of those who participated in the discussions in question can be considered to have authority to represent the agency for the purposes of the privilege or whether they constitute third parties, whose inclusion in the conversations waive the agency's right to claim the privilege.
Nkihtaqmikon v. Bureau of Indian Affairs, No. 05-188, 2009 WL 3807091 (D. Me. Nov. 13, 2009) (Woodcock, C.J.). BIA properly withheld a memorandum which discussed possible options for the agency to take in response to an upcoming court ruling. "No less than a private party engaged in litigation, individuals within the BIA must be able to freely discuss their 'uninhibited opinions and recommendations.'" BIA also appropriately withheld a memorandum written "to file" that included the author's recommendations on an agency decision that was made the same day the memorandum was written, in light of the court's previous determination that the document was written in order to advise BIA decisionmakers.
United Am. Fin., Inc. v. Potter, No. 06-1023, 2009 WL 3583567 (D.D.C. Nov. 3, 2009) (Bates, J.). USPS appropriately applied this exemption to protect e-mails reflecting internal deliberations about whether to proceed with its investigation and pursue charges against plaintiff.
Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 08-1468, 2009 WL 3150770 (D.D.C. Oct. 1, 2009) (Sullivan, J.). Though the two sides disagree on whether a law enforcement privilege should be recognized by the court under Exemption 5, the court need not reach the issue for even if the privilege were recognized the court finds that DOJ has not carried its burden for the reasons outlined in the Exemption 7(A) section of the opinion. Conversely, the court finds that DOJ properly applied the deliberative process privilege to withhold records that, though created after relevant decisions had been made, reflect the agency's predecisional deliberations. The court disagrees with plaintiff's contention that the interview materials are "'purely factual.'" Indeed, "the withheld records contain statements directly relating to communications that took place as part of the deliberative process." Furthermore, regardless of whether withheld information is publicly available, it "is protected precisely because it might compromise what information was considered and what role it played in the deliberative process. . . . 'This limited approach to waiver in the executive privilege context is designed to ensure that agencies do not forego voluntarily disclosing some privileged material out of the fear that by doing so they are exposing other, more sensitive [information].'" As to the presidential communications privilege, DOJ has now established that the very limited volume of material it is protecting under this privilege "'is comprised of direct confidential communications between the Vice President and the President [that] falls within the core of the privilege.'" The court further agrees with defendant that the former Vice President's interview with the special prosecutor, in which he revealed some of the information now withheld, does not constitute a waiver of the deliberative process or presidential communications privileges. Plaintiff's claim that such disclosure should be considered waiver unless the disclosure was made to someone with a common interest "appears nowhere in the relevant caselaw." The court agrees with DOJ that the conversations between the former Vice President and the special prosecutor are "more appropriately considered a protected interagency disclosure." Because of this, the former Vice President's "failure to formally invoke any executive privileges did not preclude the White House's future reliance on those privileges."
Abou-Hussein v. Gates, No. 08-783, 2009 WL 3078876 (D.D.C. Sept. 25, 2009) (Leon, J.). "[T]he Court concludes that the defendants are entitled to summary judgment because plaintiff has wholly failed to adduce any evidence raising a genuine dispute as to defendants' compliance with FOIA."
Electronic Frontier Foundation v. ODNI, No. 08-1023, 2009 WL 3061975 (N.D. Cal. Sept. 24, 2009) (White, J.). The court concludes that "[t]o the extent the withheld materials reflect communications between ODNI and DOJ and members of Congress in an effort to facilitate Congress' own deliberative process to craft legislation to reform FISA, these communications do not fall under the exemption as there is no evidence that they were used in an effort to aid any agency in its own deliberative process." With respect to communications between agency officials and telecommunications representatives regarding liability issues, the court finds that "[t]hose documents are not protected from disclosure because companies communicated with the government agencies 'with their own . . . interests in mind,' rather than the agency's interests." Since the threshold of Exemption 5 was not met, the court did not address defendants' arguments regarding the application of specific privileges.
King v. DOJ, No. 08-1555, 2009 WL 2951124 (D.D.C. Sept. 9, 2009) (Kennedy, J.). "There is no need for an in camera review in this case because the EOUSA Vaughn Index includes a description of the documents withheld under this exemption and reveals that the exemption was asserted only as to those documents to which the exemption logically applies. As [plaintiff] has not raised any specific issues of genuine fact with respect to the application of this exemption, his objection does not overcome the good faith accorded the agency declaration supported by an adequate Vaughn Index."
The Shinnecock Indian Nation v. Kempthorne, No. 06-5013, 2009 WL 2873174 (E.D.N.Y. Sept. 9, 2009) (Bianco, J.). "Here, it is plain from the Court's examination of the unredacted memoranda in camera that they were prepared in order to assist the Solicitor of the Department of the Interior in arriving at a decision regarding the Nation's land claim request and are thus predecisonal." The court also finds that the first of the two withheld documents is plainly a draft of the second. "In addition to finding that the memoranda at issue are predecisional, the Court finds that they are also deliberative because they comprise part of the process by which a government decision was made and constituted 'advisory opinions' or 'recommendations.' Both documents contain preliminary legal analysis that is typically protected from disclosure under Exemption 5 as deliberative material." This makes the documents "exactly the kind of records that the privilege is intended to protect." Though agencies "are not required to point to a specific agency decision in order to establish that the deliberative process is involved, in this case, the final agency decision to which these memoranda relate does not appear to be in any dispute." The court further finds that, "even though the documents at issue are roughly thirty years old, it is the Court's view that the passage of time, even as considerable as it may be in this case, does not render the deliberative process covered by Exemption 5 inapplicable."
Defendant also properly applied the attorney work-product privilege to the withheld documents. "The headings, context and substance of both memoranda make clear that they were prepared by or at the behest of counsel to the Secretary of the Interior. Furthermore, both memoranda evaluate the strength of the Nation's land claim under the Non-Intercourse Act and whether Interior should participate in the litigation on the Nation's behalf." Furthermore, "[it] does not matter that Interior did not ultimately participate in such litigation, or whether or not such litigation in fact occurred." It is also irrelevant that the analyses put forth in these memoranda may be utilized by the agency in similar cases.
Jordan v. DOJ, No. 07-02303, 2009 WL 2913223 (D. Colo. Sept. 8, 2009) (Blackburn, J.) (adopting magistrate's recommendation). BOP properly invoked the attorney work-product privilege under Exemption 5 to withhold a list compiled by an attorney for the purpose of defending against plaintiff's tort claim, and the opinions, conclusions and recommendations of paralegals contained in memorandums prepared for BOP Regional Counsel. Statements containing "the opinion of the BOP attorney regarding application of the law to the specific facts of Plaintiff's administrative grievances" also qualify as attorney work-product.
Judicial Watch, Inc. v. U.S. Dep't of State, No. 08-1011, 2009 WL 2842881 (D.D.C. Sept. 3, 2009) (Leon, J.). Defendant properly withheld portions of notes taken in preparation for a congressional hearing. Notes such as these "are often made as part of the agency's internal decisionmaking process. . . . As our Court of Appeals has pointed out, notes tend to be 'selective and deliberative," and disclosing them would 'hinder government officials from debating issues internally, deter them from giving candid advice, and lower the overall quality of the government decisionmaking process.'" Defendant is not required to "'demonstrate any specific harm' that would result if the congressional hearing notes were released."
Citizens for Responsibility & Ethics in Wash. v. DHS, No. 08-1046, 2009 WL 2750486 (D.D.C. Sept. 1, 2009) (Bates, J.). Upon in camera review, the court finds that some of the information withheld by DHS does not qualify as deliberative, but instead consists of requests for factual information or requests for assistance or a discussion of what sector of the agency should have responsibility for a task. These are not "deliberative" inasmuch as "no agency policy is being debated or discussed . . . - a task is simply being identified and assigned." As to other documents, the court finds that some of the redacted material was both deliberative and predecisional and its release is likely to chill debate and adversely affect decisionmaking, but other portions were not, as they do not reflect agency deliberations. For other withheld documents, the court is still unable to reach a conclusion due to insufficient detail in defendant's Vaughn index. "Although [defendant] puts much stock in its characterization of this document as a 'draft' containing 'talking points,' that, without more context, such as the attachment's author, recipient, purpose or use, is insufficient to assess the exemption claim." Defendant must submit a revised Vaughn index. For certain draft documents, in camera review established that the document "contains the drafter's personal assessment of possible policy options." According to the court, "[s]uch material clearly reflects 'the personal opinions of the writer' and reveals the 'give-and-take of the consultative process.'" DHS incorrectly applied the attorney-client privilege to one document. The withheld material "is not a privileged communication." Furthermore, "the redacted material does not contain confidential client information, nor does it solicit legal advice."
Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys., No. 08-9595, 2009 WL 2599336 (S.D.N.Y. Aug. 24, 2009) (Preska, C.J.). Plaintiff "does not dispute that the [RTRs] qualify" as intra-agency documents, but the Board has not met its burden to show that they are privileged. "The Merrill Court certainly did not intend to create a sweeping new privilege for any sensitive information, the immediate release of which would significantly harm the Government's monetary functions or commercial interests." Furthermore, "while the [RTRs] were circulated to Board and FRBNY staff, the Reports do not contain any information remotely similar to the type of information discussed in Merrill: information that provides guidance or directives. Instead, they provide historic data."
Carter, Fullerton & Hayes, LLC v. FTC, No. 07-1041, 2009 WL 2222364 (D.D.C. July 24, 2009) (Lamberth, C.J.). Previously, the court ruled that the FTC had not sufficiently justified its assertion that it could not segregate out and release factual material. FTC has now explained that some of the withheld documents were withheld pursuant to the attorney work-product privilege, thereby eliminating the need for segregation of factual material, given that "factual material is itself privileged when it appears within documents that are attorney work-product." As to factual information in deliberative documents, FTC has established that "'revelation of the facts themselves, or more specifically, what the author decided and selected as pertinent facts or information, would expose the deliberative process.'" Defendant has also offered adequate explanations for its decision to withhold factual information from several other documents, including drafts of a speech given by an agency official. These drafts "were properly withheld in full because 'revelation of the facts themselves, or more specifically, what the author decided and selected as pertinent facts or information, would expose the deliberative process.'" As to more recently discovered documents, defendant has made appropriate withholdings. FTC's explanations for its withholdings "are sufficiently explanatory for the Court to discern suasponte their predecisional and deliberative nature." Furthermore, "plaintiff is incorrect in its assertion that defendant needs to identify a specific FTC policy decision to which many of these documents are antecedent to."
McGrady v. Mabus, No. 06-752, 2009 WL 2170141 (D.D.C. July 22, 2009) (Kessler, J.). Defendants incorrectly applied Exemption 5 to the MBSs. The MBSs "are used as a tool in the decision-making process, and serve as an important factor in the final promotion decision. However, they reveal only the data used during the [promotion] process, not the substance of the deliberations. . . . Defendants' own definition of Master Brief Sheets suggests that they contain no information about the content of Selection Board proceedings, but rather provide only facts that are used during the proceedings." Moreover, "it is unlikely that candor would be inhibited during Selection Board proceedings because releasing Master Brief Sheets reveals no information about the content of Board members' deliberations, or about the weight that a particular fact was given in a decision on any individual officer." Finally, "Exemption 5 covers only 'memorandums or letters.' Master Brief Sheets are neither. They are data." Exemption 5 is similarly inapplicable to the Sampled MBSs, which are a small portion chosen from the whole body of MBSs to serve as a representative sample. Though "the process by which the President of the Selection Board selects the Sampled Master Brief Sheets does require deliberation, the sampling process itself is not the relevant deliberation for analysis. . . . The sampling process has no impact on the officer selection proceedings, and samples do not reveal anything more about the deliberative process than the current practice of releasing the names and basic statistical information of officers selected for promotion. It would distort the purpose of the deliberative process privilege-to protect the consultations that precede decisions on important legal or policy matters-if tangential deliberations could be used as a bootstrap for withholding information that otherwise is not protected by the privilege." Furthermore, "disclosing the samples will not inhibit dialogue or discourage candor at future Selection Board proceedings because they reveal no information about individual Board members and no substantial information about the content of the deliberations."
Habeus Corpus Res. Ctr. v. DOJ, No. 08-2649, 2009 WL 1883724 (N.D. Cal. June 30, 2009) (Wilken, J.). Upon in camera review, the court determines that DOJ's use of this exemption was proper.
Defenders of Wildlife v. U.S. Border Patrol, No. 04-1832, 2009 WL 1620790 (D.D.C. June 11, 2009) (Friedman, J.). DHS has not adequately explained its use of this exemption and privilege. It has provided "no explanation of how any of the documents are predecisional or deliberative or what deliberative process is involved. It simply is not sufficient to state that all withholdings relate to 'a decision or decisions on how best to implement the Arizona Border Control Initiative.'"
Antonelli v. BOP, No. 07-2016, 2009 WL 1593701 (D.D.C. June 9, 2009) (Kollar-Kotelly, J.). Pursuant to the attorney work-product privilege, BOP properly withheld documents prepared in connection with tort claim investigations, including staff memoranda and documents created by investigators working at the behest of agency counsel. As to a memorandum concerning "security and policy related issues," BOP "has not specified" which portions contain Exemption 5 information and which portions contain Exemption 7(F) information. BOP properly utilized the deliberative process privilege to withhold communications containing recommendations for adjudicating administrative complaints, as well as a draft resolution created for one of the complaints.
Carson v. U.S. Office of Special Counsel, No. 08-317, 2009 WL 1616763 (E.D. Tenn. June 9, 2009) (Phillips, J.). Defendant has shown that its use of these exemptions to withhold information was proper.
Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1298123 (N.D. Cal. May 5, 2009) (Patel, J.). The court finds that the document descriptions in OMB's Vaughn index are "insufficiently detailed" to support its withholdings. They are "'overly simplistic and conclusory . . . [and] coupled with boilerplate explanations. . . .'" Furthermore, as to OMB's use of the presidential communications privilege, the court finds that "[t]o extend the privilege to intra-OMB discussions relating to 'draft background paper and memorandum used to prepare a presentation for the President,' without a more detailed description, would run contrary to the law on this FOIA exemption." OMB's Vaughn entries concerning its use of the attorney-client privilege do not indicate "how a lawyer is involved," or "how the document contains legal advice."
Ctr. for Biological Diversity v. OMB, No. 07-04997, 2009 WL 1246690 (N.D. Cal. May 5, 2009) (Patel, J.). Plaintiff's assertion that draft question and answer sheets and draft press releases are not eligible for protection as deliberative documents is incorrect and is not supported by prior case law. The court finds that OMB correctly withheld certain draft documents and other documents pertaining to those drafts. However, the court further finds that OMB's Vaughn index has not sufficiently described certain other documents withheld pursuant to the deliberative process privilege. As to the documents whose Vaughn descriptions were found to be adequate, OMB also provided sufficient explanation of its efforts to segregate. These documents contained properly withheld factual information. "The editorial selection of the facts on which the agency or agency members are providing opinions is precisely the sort of intertwined factual information that is protected by the deliberative process privilege." In this case, the majority of documents are e-mail chains, "which are likely short rejoinders to comments made by the previous author." OMB has not provided sufficient information for the court to rule on its use of the presidential communications privilege. OMB must distinguish between documents actually prepared for the President or his senior advisers (or drafts of these documents) and documents that reflect internal OMB discussions concerning "'draft background papers'" and the development of another agency's rulemaking. OMB has provided enough information to show that its use of the attorney-client privilege was proper. OMB did not waive the privilege by including personnel from other agencies in some of these communications, as the privilege extends "to multiple parties who share a common interest in a legal matter." Finally, OMB "correctly asserted . . . that there is no need to perform a segregability analysis on documents protected under the attorney-client privilege."
Information Network For Responsible Mining (INFORM) v. Bureau of Land Mgmt., No. 06-02269, 2009 WL 1162551 (D. Colo. Apr. 28, 2009) (Kane, J.). Plaintiff has provided "no basis" for its claim that BLM's regulation, 40 C.F.R. § 1506.6(f) (2008), which provides that environmental impact statements may not be withheld under Exemption 5, also applies to environmental assessments. However, although BLM has demonstrated that the withheld documents are predecisional, BLM has not provided "sufficiently specific" information for the court to determine if all of the material it withheld is deliberative. In particular, BLM has not shown whether the factual information it withheld would, if disclosed, "reveal the deliberative process" or is "too intertwined with deliberative materials to be segregable." BLM is ordered to submit a more detailed Vaughn index (both as to this information as well as to any additional records it locates as part of the further search it has been ordered to conduct).
Updated: February 2013