Am. Ctr. for Law & Justice v. DOJ, No. 17-01866, 2018 WL 4496306 (D.D.C. Sept. 19, 2018) (Mehta, J.)

Am. Ctr. for Law & Justice v. DOJ, No. 17-01866, 2018 WL 4496306 (D.D.C. Sept. 19, 2018) (Mehta, J.)

Re:  Request for records related to a meeting between a former President and Attorney General

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 7, Threshold, Exemption 6 & Exemption 7(C):  The court holds that, "[d]efendant's reliance on Exemption 7(C) can be disposed of quickly."  "To determine whether records are compiled for law enforcement purposes, [the D.C. Circuit] has long emphasized that the focus is on how and under what circumstances the requested files were compiled and whether the files sought relate to anything that can fairly be characterized as an enforcement proceeding."  "Here, [d]efendant's declarant has not established that the email in question – labeled FBI-12 – was 'compiled for law enforcement purposes.'"  "[The declarant] broadly states that documents containing 7(C) withholdings 'were compiled in the course of the FBI's investigation of (1) a potential breach in law enforcement related security protocol concerning the security detail of the Attorney General; or (2) compiled in the course of an ongoing FBI sensitive law enforcement and national security investigation.'"  "In short, [d]efendant has not carried its burden of making a connection between the email and an enforcement proceeding . . . Exemption 7(C) therefore does not apply."
  
  "The court proceeds to analyze [d]efendant's withholdings under Exemption 6."  "[The FBI] gives three reasons why the individuals in this case have a substantial privacy interest in their names."  "First, [the FBI] states that because the individuals are privy to information regarding investigations, they 'may become targets of harassing inquiries for unauthorized access to information regarding such investigations if their identities were released.'"  "Second, public disclosure of the individuals' investigative assignments, which may occur through publicizing their names, 'may seriously prejudice their effectiveness in conducting other investigations.'"  "Third, disclosure of their identities would open the door to 'unnecessary, unofficial questioning' of the individuals regarding the investigation or their work, including, for example, from a target of an investigation who carries a grudge.'"  "Based on [FBI's] declaration, the court finds that the individuals' privacy interest in the non-disclosure of their names is substantial . . . [and that] [t]he countervailing public interest is, at best, a marginal one."
   
• Exemption 5, Deliberative Process Privilege:  "Defendant asserts that the talking points are both predecisional and deliberative."  "Specifically, [the FBI] states that the records are predecisional because they 'were drafted before and in preparation for communications with the press and public' . . . and deliberative because 'they were intended to facilitate or assist in the development of the Department of Justice's responses to inquiries about that meeting.'"  "Plaintiff responds that the talking points are not 'deliberative,' as they are the 'final' version of the talking points and do not contain preliminary assessments."  "Relatedly, seizing on [d]efendant's acknowledgment that the talking points contain facts, [p]laintiff argues that, at a minimum, [d]efendant must segregate and disclose all facts contained within the talking points."  The court notes that, "[p]redecisional documents include those 'generated as part of a continuous process of agency decision making, viz., how to respond to on-going inquires.'"  "Accordingly, 'courts have generally found that documents created in anticipation of press inquiries are protected.'"  The court holds that, "[t]he talking points in this case can fairly be categorized as predecisional because they were 'drafted before and in preparation for communications with the press and public' and are 'a critical aspect of the decision-making process.'"  "The withheld material also qualifies as deliberative in that the talking points 'reflect the drafters' opinions and analyses on specific topics and focus on how to best . . . respond to questions on these topics from the [d]efendant's perspective.'"  "Thus, the withheld talking points are protected from disclosure under Exemption 5."  The court also holds that, "[p]laintiff's segregation argument bears no fruit."  "As a general matter, '[p]urely factual material usually cannot be withheld under Exemption 5 unless it reflects an exercise of discretion and judgment calls.'"  "Therefore, whether an agency's withholding under the privilege was justified 'does not turn on whether the material is purely factual in nature or whether it is already in the public domain, but rather, whether the selection or organization of facts is part of an agency's deliberative process.'"  "After reviewing the withheld material in camera . . . the court finds that the factual information contained in the talking points cannot be segregated from the deliberative process of creating them."  "These facts are thus 'inextricably intertwined' with [d]efendant's deliberations because their disclosure would reveal the factual information that agency personnel decided to emphasize in response to media inquiries."