A.B. v. DOJ, No. 19-00598, 2021 WL 1061161 (D.D.C. Mar. 19, 2021) (Nichols, J.)

A.B. v. DOJ, No. 19-00598, 2021 WL 1061161 (D.D.C. Mar. 19, 2021) (Nichols, J.)

Re:  Request for records concerning former Attorney General Sessions' decision to certify A.B.'s asylum case to himself

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations:  The court notes that "[plaintiff] does not challenge DOJ's withholding of materials under Exemptions 6 or 7(C), or under Exemption 5 for information protected by the attorney-client privilege or attorney-work product doctrine."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "DOJ has demonstrated that it properly withheld documents under Exemption 5's deliberative process privilege."
   
  Initially, the court notes that plaintiff focuses on certain emails from the Office of the Attorney General to the Office of Legal Counsel and "argues that these emails show that the Attorney General had made the decision to certify her case to himself by December 6, 2017, and therefore that any document created after that date cannot be 'predecisional.'"  "The Court . . . concludes that [these] Emails were part of an ongoing discussion between OAG and OLC involving intra-agency legal advice prior to an agency decision on the issues involved and fit squarely within the deliberative process privilege."   The court finds that "the emails are better construed as a communication from OAG to OLC seeking OLC's input and guidance on several issues, including whether the Attorney General should certify the listed cases to himself."  "The principal role of OLC is 'to assist the Attorney General [by providing] advice and analysis with respect to very difficult and unsettled issues of law' . . . ; OAG reached out to OLC to perform that function."  "The [emails] were written as a part of the process by which the Attorney General came to a final decision and had no 'operative effect' (as proven by the fact that the Attorney General did not certify one of the cases in the emails to himself)."
   
  The court then described six categories of records.  First, the court reviews "'portions of formal memoranda prepared by a Counselor to the Attorney General in which he makes substantive recommendations regarding particular actions to be taken in the Matter of A.B., including detailed analyses of case precedent, opinions, and assessment of the factual circumstances of the case.'"  The court relates that "DOJ contends that the memoranda are predecisional because they precede a final decision by the Attorney General, . . . and deliberative because they consist of legal advice regarding the issues in the cases . . . ."  Second, the court relates that defendant withheld "draft memoranda, orders and opinions, and Office of Public Affairs statements (all of which were withheld in full) and discussions regarding the draft statements."  "DOJ contends that these documents are predecisional because they were drafts created prior to the final, approved versions of the orders, opinions, and statements at issue, . . . and deliberative because they reflect 'edits, mark-ups, and additions, as well as reactions among agency officials to those proposed edits' . . . ."  Third, the court relates that "DOJ also redacted internal deliberations regarding the Attorney General's review of A.B.'s case."  "DOJ asserts that . . . they were made before any final decisions by the Attorney General and deliberative because they contain subordinates' recommendations to the Attorney General regarding specific decisions."  Fourth, the court relates that defendant withheld "discussions about (1) proposed topics for the Attorney General to discuss at the Judicial Conference Meeting, (2) issues under consideration by OAG that are not public and unrelated to A.B.'s case, (3) the processing of specific FOIA requests and what information to release in response to those requests, (4) official characterization and release of information regarding the Attorney General's decisions in asylum cases, (5) analysis of immigration case law, and (6) information to include in an interagency report drafted in response to an executive order."  "DOJ contends that [these] withholdings are predecisional and deliberative because they consist of 'evaluative discussions, proposed topics and information for inclusion in official reports or public statements, or ongoing reflections on legal issues.'"  Fifth, defendant withheld "an email exchange between DOJ and a White House official who requested information on Board decisions that the Attorney General had certified to himself."  "DOJ asserts that the email is predecisional because it consists of discussions held prior to a final decision or action by the White House and deliberative because it contains the collaborative process between DOJ and the White House in which White House staff gathered specific information from DOJ regarding pending matters of concern to the Executive Branch."  Sixth, the court relates that defendant withheld "attachments to an email exchange among DOJ officials" which "are examples of decisions by Attorneys General in prior asylum cases that were provided to the Attorney General in his consideration of A.B.'s case."  "DOJ contends that the case samples are predecisional because they relate to the Attorney General's review of other cases as part of the process leading up to his final decision in A.B.'s case and deliberative because they reflect 'the thought processes and judgment of [DOJ] officials as they canvass and cull from the wide spectrum of available past decisions by Attorneys General, analyze those decisions, and select those considered most relevant.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court . . . finds that DOJ has complied with its obligations to produce any non-exempt information that may reasonably be segregated for release."  The court finds that "DOJ has provided detailed reasoning for each withholding under the deliberative process privilege."  "For documents withheld in their entirety, DOJ has represented that it 'thoroughly reviewed each of the records and withheld from disclosure only that specific information which would reveal [DOJ's] predecisional decisionmaking process.'"  "As for documents produced in part, DOJ asserts that it 'conducted a line-by-line review' of the responsive records and withheld only those portions that would reveal 'specific deliberations and recommendations.'"