Campaign Legal Ctr. v. DOJ, No. 18-1771, 2025 WL 973469 (D.D.C. Mar. 31, 2025) (Chutkan, J.)

Campaign Legal Ctr. v. DOJ, No. 18-1771, 2025 WL 973469 (D.D.C. Mar. 31, 2025) (Chutkan, J.)

Re:  Request for records concerning addition of citizenship question to the census

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

• Exemption 5, Deliberative Process Privilege: First, the court relates that “Plaintiff argues that the redacted portions of the 10-page email thread between DOJ, Commerce, and White House staff fall outside the deliberative process privilege because the email thread was not pre-decisional.”  “The court finds that this category of documents is pre-decisional.”  “When the documents were created is a factor – the emails here were created on December 19, 2017, two days after the final DOJ letter to the Census Bureau.”  “‘But that does [not] end [the] analysis.’” “The D.C. Circuit has held that if a document ‘communicates a policy decision’ that ‘will have direct consequences for ongoing agency programs and policies,’ it is pre-decisional.”  “The email thread here discussed Commerce seeking assistance from the White House on how best to notify Congress of DOJ’s request.” “Requesting advice about the rollout of DOJ’s decision to Congress and its various implications was an attempt to ‘define, refine, debate, and flesh out the boundaries of and justifications’ of that decision.”  “The email thread is therefore ‘not so much to explain the agency’s already-decided policy,’ but an ‘iterative weighing of legal and policy concerns.’” “Accordingly, because the email thread ‘involved the type of pre[-]decisional discretionary judgments consultations, and policy calls that the deliberative process protects,’ this category of documents is also exempt under the deliberative process privilege.”
  
  Next, “Plaintiff argues that Defendant’s two redacted comment bubbles on one page of its 24-page draft response to the USCCR’s interrogatories are outside the scope of the deliberative process privilege because they are ‘cosmetic edits or wordsmithing,’ not substantive policy judgments.”  “One comment responds to a ‘superficial’ proposed edit with no substantive change to the interrogatory response, and the other comment does not suggest any in-line edits and the final draft reflected no change.”  “On their face, the two comments bubbles do not appear to be Defendant ‘formulating and refining both the actual content of and the public rationale for a new and consequential governmental policy in a way that required balancing the proposed justifications for a citizenship question with other departmental policy and litigation interests.’”  “But the two comments show that the then-Associate Deputy Attorney General ‘agreed and disagreed with the earlier version of the’ draft interrogatory response.”  “It appears that, at least, the first proposed change was not adopted.”  “‘Even if the deciding official agreed with each of the comments,’ ‘[c]omments of that type fall squarely within the deliberative process privilege’ because they reveal the back-and-forth that led to the final interrogatory response.”  “Consequently, the comment bubbles are pre-decisional and deliberative and were appropriately redacted.”
  
  Additionally, “Defendant argues that the deliberative process privilege protects from disclosure part of its discussion regarding its response to questions from the Washington Post.”  “The court agrees.”  “Numerous trial courts in this District have held that the deliberative process privilege applies to press inquiries, and the court is persuaded by those opinions.”
  
  Next, “Defendant contends that four separate drafts of a letter from then-Assistant Attorney General Stephen Boyd to Representative Vicente Gonzalez are exempt under the deliberative privilege because:  (1) comparing the draft and the final version of the letter confirm that the differences were ‘substantive and substantial,’ and (2) DOJ officials were ‘providing advice about, and proposed modifications to, evolving versions’ of the letter.”  “The drafts were prepared in response to a January 9, 2018, letter from Representative Gonzalez to the Attorney General seeking information regarding the addition of the citizenship question.”  “Because the draft letters are substantively the same as the draft Gary Letters, the court again agrees that they were properly withheld and are pre-decisional because they concern Defendant’s ongoing discussion about how best to respond to Congressional inquiries.”  “Moreover, they are ‘drafts of an unfinished, work-in-progress policy letter’ and ‘[s]uch proposed drafts of a non-final agency decision that are still undergoing review, debate, and editing constitute deliberative work in progress.’”
  
  “Similarly, Defendant withheld three pages of internal emails where its staff provided ‘advice, preliminary research, and opinions, and analysis regarding the census or American Community Survey.’”  “The court lacks sufficient information to hold the same regarding this category of documents.”  “Defendant has not provided the court with a copy of the redacted emails.” “Nor do its declarations describe the withheld emails with sufficient particularity to allow the court to ascertain whether the deliberative process privilege applies.”  “The declaration merely states that the emails are pre-decisional because they form ‘part of the ongoing internal Department deliberations’ regarding the Census and are deliberative because they ‘ultimately led’ to Defendant’s request for a citizenship question.”  “The court will direct Defendant to provide further information regarding the withheld documents and why they are protected by the deliberative process privilege.”
  
  “Finally, Defendant withheld a draft letter ‘ultimately sent by Arthur E. Gary, then General Counsel for [DOJ’s JMD], to Kelly Welsh, then General Counsel to the Department of Commerce, in response to a May 9, 2014 letter from the Department of Commerce.’”  “Commerce’s May 9 letter requested:  (i) that Defendant ‘review the questions asked on its behalf in the American Community Survey,’ and (ii) that Defendant affirm its ‘legal authority’ to access that information.”  “Defendant argues that this information is pre-decisional because ‘internal edits and substantive differences between the draft letter and the final version predated the agency’s final’ response, and is deliberative because, again, it was part of the exchange of ideas that went to Defendant’s response to the citizenship question request.”  “The court agrees.”  “The correspondence reflects internal edits regarding a detailed response to Commerce.” “Drafting such letters are ‘at the heart of the deliberative process privilege.’”
   
• Exemption 5, Foreseeable Harm and Other Consideration:  “The court largely agrees with Defendant [on the issue of foreseeable harm], except for the Draft USCCR Interrogatories category.”  “[Defendant] explained in her Third Declaration that disclosing Defendant’s correspondence with the White House – the first document category at issue here – would be harmful because it would ‘inhibit the Executive Branch’s ability to engage in effect[ive] communication[,] decision-making, and inter-agency coordination’ by ‘interfering’ with senior officials’ ability to ‘engage in candid discussions and to obtain or offer advice.’” “Defendant’s draft responses to the Washington Post’s inquiries – the third document category at issue – would similarly be harmful because officials would ‘temper[ ] their discussion with an eye towards eventual publication of their deliberations.’”  “Disclosing draft correspondence to Representative Gonzalez – the fourth document category – could be harmful because it might hamper the ‘free flow of information sent back-and-forth between decisionmakers and staff within [DOJ].’”  “[Defendant] further explained in her Third Declaration how disclosing deliberations about the Census or [American Community Survey (“ACS”)] – the fifth document category – ‘would severely hamper the efficient day-to-day workings of the Department as individuals would no longer freely ask clarifying questions or share their ideas and advice, via email.’”  “[Defendant] attested the same for the draft letters to Commerce – the last document category – because disclosure would hamper ‘frank internal dialogues that happens within DOJ before final decisions are made on how to convey Departmental views and advice to counterparts in the Executive Branch.’” “In [defendants’] Fourth Declaration, she expanded on her previous justifications for foreseeable harm for all the categories of documents discussed above.”  “[Defendant’s] Fifth Declaration expounded further on the foreseeable harm that could result from disclosure of the documents.”  “The three [defendant] declarations, each more detailed than the last, are sufficient to demonstrate foreseeable harm for every document category, except for the Draft USCCR Interrogatories.”  “Defendant describes how policies and communications both inside and outside DOJ and with the Executive Branch would be hampered by disclosure.”  “Those justifications are not ‘cookie-cutter’ descriptions void of a ‘link between the specified harm and the specific information contained in the material withheld.’”
  
  “The court cannot say the same, however, for the two remaining comment bubbles at issue in the Draft USSCR Interrogatories.” “[Defendant’s] Third Declaration states that ‘any further release’ in this category ‘would significantly undermine the ability of [DOJ] officials to freely engage’ in candid conversation and ‘forthright internal development.’”  “She maintains – as she did in her Fourth Declaration – that officials would be ‘less willing to offer novel or alternative stances, opinions, or proposal and less frank in evaluating the work of others.’” “[Defendant’s] Fifth Declaration claims that producing the two specific comment bubbles would curb officials from providing feedback and thereby inhibit DOJ’s ‘relationship’ with the Legislative Branch.”  “But Defendant does not connect the risk of disclosing two comments made by an official about two lines of a 24-page draft interrogatory response to the harm of chilling agency communication.”  “Nor does it tie the comments to the even broader harm of weakened inter agency relationships.”
  
  “Finally, Plaintiff argues that Defendant cannot meet its foreseeable harm burden because the Supreme Court emphasized . . . that Commerce’s rationale for a citizenship question was ‘incongruent with what the record reveal[ed] about the agency’s priorities and decisionmaking process.’” “Whether Commerce’s voting rights rationale for enacting a citizenship question was declared pretextual ‘does not undermine the need to protect the confidentiality of pre-decisional documents written for consumption within the agency itself.’”  “Various policy judgments are involved in ‘what rationales, justifications, and limitations to provide – and which to leave out – in articulating an important agency decision.’”  “The fact that Commerce’s sole rationale was declared unlawful does not otherwise diminish the foreseeable harm DOJ projects from disclosing the withheld documents.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court relates that “Defendant asserts that it conducted a line-by-line review of the responsive records to identify information exempt from disclosure.”  “It produced most of the draft interrogatory responses and related draft . . . emails while this case was on appeal.” The court finds that “Plaintiff has proffered no evidence to contradict that, and the court will therefore also find that Defendant complied with its obligation to segregate exempt[] from non-exempt information.”