Buzzfeed, Inc. v. DOJ, No. 19-00070, 2019 WL 6525632 (D.D.C. Dec. 4, 2019) (McFadden, J.)

Buzzfeed, Inc. v. DOJ, No. 19-00070, 2019 WL 6525632 (D.D.C. Dec. 4, 2019) (McFadden, J.)

Re:  Request for "'original and amended versions'" of financial disclosure forms for former Attorney General's Chief of Staff and then Acting Attorney General

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court holds that "DOJ has not carried its burden of establishing that the draft forms themselves reflect the deliberative process, so the exemption does not apply."  The court relates that "DOJ claims that the 14 'uncertified versions' of the [Office of Government Ethics ("OGE")] forms are pre-decisional 'because they were prepared before determining the final contents of the report.'"  "[Plaintiff] does not argue otherwise."  However, the court finds that "[t]he draft forms fail the 'deliberative' requirement, because they do not reflect 'recommendations or express[ ] opinions on legal or policy matters.'"  "In DOJ's view, that process 'effectuate[d] DOJ's policy on public disclosure.'"  "But it is not clear that the ethics officials' revisions had anything to do with the 'give-and-take of the consultative process' that leads to policy."  "DOJ was not formulating policy at all."  "Its ethics officials were merely trying to assist in the accurate completion of [the] financial disclosure forms in compliance with the Ethics in Government Act and OGE policy."  Additionally, the court finds that "the mere collection of facts does not constitute a privileged decision."  "'Anyone making a report must of necessity select the facts to be mentioned in it; but a report does not become a part of the deliberative process merely because it contains only those facts which the person making the report thinks material.'"  "'If this were not so, every factual report would be protected as a part of the deliberative process.'"  "Instead, [the] draft forms contain 'raw facts with informational value in their own rights,' not those that 'serve primarily to reveal the "evaluative" process by which different members of the decision-making chain arrive at their conclusions and what those pre-decisional conclusions are.'"  Finally, the court explains "as [plaintiff] correctly notes, 'filers are required by law to report this information and report it correctly,' meaning that future filers and the ethics officials who review their submissions will continue to revise filings until they meet their legal obligations."
   
• Exemption 6:  "[B]ecause [the] financial information is private and the public's interests are minimal, Exemption 6 protects [the] undisclosed financial information."  The court finds that "the categories of information in [the] draft forms convey the intimate information about his financial affairs: employment positions; assets, income, and retirement accounts; spouse’s employment assets and income; liabilities; and other details."  "The financial information listed in the forms is intensely personal and meets the threshold privacy requirement."  Regarding the public interests, "[t]he Court agrees with [plaintiff] that the public has a significant interest in the information in the final versions of [the] forms."  "But as [plaintiff] concedes, that interest diminishes for the financial information found only in the draft versions, to no more than 'information for its own sake.'"  "On the other hand, [the subject's] privacy interest is at its peak here."  The court finds that "[the subject's] privacy interest in the undisclosed information far exceeds the public's virtually non-existent countervailing interest."  Additionally, the court notes that "[plaintiff] should not be able to use FOIA to do an end-run around the disclosure lines Congress established in the Ethics in Government Act."  "These bright lines also encourage candor when filers entrust their financial information with OGE and the ethics officials who will help determine what must be reported."  "Filers should be confident they can be transparent with their ethics officials about their financial information without fearing that data not required by the Ethics in Government Act may nonetheless be disclosable under FOIA."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  The court holds that "[the] remaining withholdings [should] only apply to entries removed during the revision process because DOJ's ethics officials determined [the subject] did not have to disclose the information."  "Otherwise, DOJ must release all information in the draft forms that corresponds to an entry in the final versions."