Arab Am. Inst. v. OMB, No. 18-0871, 2020 WL 4698098 (D.D.C. Aug. 13, 2020) (Jackson, J.)

Arab Am. Inst. v. OMB, No. 18-0871, 2020 WL 4698098 (D.D.C. Aug. 13, 2020) (Jackson, J.)

Re:  Request for records concerning whether "'Middle Eastern and North African'" would be included as race reporting category on 2020 Census

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

• Exemption 5, Deliberative Process Privilege:  "Based on the Court's in-camera review, as well as the information provided in the government's affidavits, the Court finds that the five documents at issue are both predecisional and deliberative, and therefore fall within FOIA Exemption 5."  The court holds that "[t]he first document is a draft outline for [the Interagency Working Group for Research on Race and Ethnicity's] final report to OMB regarding its findings."  "The document includes comments and questions about proposals to be included."  "This record is predecisional because it precedes and considers the content of the formal submission of findings to OMB, and it is deliberative."  Also, the court holds that "[t]he second and fifth documents are internal drafts of a federal register notice that was never published."  "They include comments and blank spaces where information is to be filled in, and thus the documents are part of the 'give-and-take of the deliberative process by which the decision itself is made.'"  Additionally, the court holds that "[t]he third and fourth documents are draft presentations outlining potential recommendations and describing what the implementation of each would entail."  "These presentations reviewing alternative courses of action are also both predecisional and deliberative."
  
  Regarding the overarching process at issue, the court holds that "[w]hile the decision not to take a particular action can constitute a final decision, . . . defendant's declarant avers that no final agency action has been taken, and plaintiff points to no evidence to the contrary."  "Plaintiff argues that a final decision must have been made because the Census Bureau issued a statement announcing that it would not include the 'Middle Eastern North African' category on the 2020 Census."  "But the fact that the Census Bureau did not include the category does not mean that OMB came to an end of its decision-making process on what it would recommend."  "[E]ven if the agency had made an internal decision to maintain the status quo, the documents at issue would not lose their predecisional status because plaintiff has not shown that they have been 'adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.'"
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]he government explained that it conducted a 'document-by-document review of all records [it] collected' to assess whether any information could be disclosed."  "Plaintiff has not provided any evidence to the contrary."  "Thus, based on the government's affidavit and its in-camera review of the records, the Court finds that there was not any 'factual or otherwise nonexempt information' that could be segregated and disclosed."