Campaign Legal Ctr. v. DOJ, No. 18-1187, 2020 WL 2849907 (D.D.C. June 1, 2020) (Chutkan, J.)

Campaign Legal Ctr. v. DOJ, No. 18-1187, 2020 WL 2849907 (D.D.C. June 1, 2020) (Chutkan, J.)

Re:  Request for records concerning December 12, 2017 request to Census Bureau to add Citizenship question to 2020 Census Questionnaire

Disposition:  Denying defendant's motion for summary judgment; granting plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "DOJ's use of a single search term for all the digital records does not pass muster . . . ."  "It is likely that responsive digital documents exist which do not have the word 'census' in them."  "Thus, because only one search term was used, and that term was inadequate, the search was not 'reasonably calculated to uncover all relevant documents.'"  The court also notes that "[n]one of [the] searches used any of [plaintiff's] eight suggested search terms."  "DOJ argues that two of the eight terms are too general, but does not address the other six."  "[The] court is mindful that an agency has discretion in how it conducts a FOIA search, and that '[i]n general, a FOIA petitioner cannot dictate the search terms for his or her FOIA request.'"  "But an agency's discretion 'is not boundless; the search terms selected must pass muster under a standard of reasonableness.'"
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the documents [at issue] are not predecisional."  The court relates that "the drafting process [at issue] postdated Attorney General Session's decision to issue [a] letter, but undeniably predated the decision about the final contents of the letter."  "The ultimate question is what constitutes the relevant decision for Exemption 5."  The court holds that "[t]he letter at issue did not involve discretion about an agency position or about the primary reasons for the agency position."  'The agency's position and the reasons for the letter had already been decided."  "Thus, the drafting did not demonstrate 'the process by which policy is formulated,' nor could it 'reasonably be said to reveal an agency's or official's mode of formulating or exercising policy-implicating judgment.'"  "They were not used to help the agency make a decision, but rather were used to communicate the decision."  "Consequently, the court finds that the relevant decision for purposes of Exemption 5 is the one made by Attorney General Sessions to request the citizenship question, not the decision about the final contents of the letter."  "The emails sent and the drafts written after that decision are thus not predecisional and cannot be withheld under Exemption 5."