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Campaign Legal Ctr. v. DOJ, Nos. 20-5233 & 20-5234, 2022 WL 1548487 (D.C. Cir. May 17, 2022) (Millett, J.)

Date

Campaign Legal Ctr. v. DOJ, Nos. 20-5233 & 20-5234, 2022 WL 1548487 (D.C. Cir. May 17, 2022) (Millett, J.)   

Re:  Request for records concerning DOJ's general counsel's request to Census Bureau to add citizenship question to decennial census

Disposition:  Reversing in part district court's grant of requester's motion for summary judgment; remanding case  

  • Exemption 5, Deliberative Process Privilege:  Here, "[t]he parties [did] not dispute . . . that the documents at issue were created after the Attorney General's decision to request that the Census Bureau include a citizenship question[.]"  "So [the documents] were not predecisional as to that policy judgment."  However, the Court of Appeals for the District of Columbia Circuit finds that "[t]he policy judgments involved in the formulation of the . . . [l]etter went beyond the single, bottom-line decision to request a citizenship question."  The court recognizes that "even after an agency head has set the direction of agency policy at the macro level, the subsequent work needed to define, refine, debate, and flesh out the boundaries of and justifications for that position can, upon a proper showing, also qualify as predecisional."  To that end, the court finds that "[DOJ] . . . was engaged in 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."  "The Acting Chief of the Civil Rights Division's Freedom of Information/Privacy Act Branch . . . attested that, in the drafting and editing process, personnel within the Justice Department sought 'review and input,' requested additional 'relevant information,' and engaged in a 'frank discussion of vital enforcement interests[.]'"

    The appellee countered that "the '[l]etter . . . was simply a pretext' and was not 'describing an actual policy decision of the Department[.]'"  However, the court notes that the appellee did not "cite[] any case under FOIA that has recognized an exception to the deliberative process privilege for pretextual documents, nor [did it advance] a developed argument to that effect."  Accordingly, the court finds that "the drafts of the . . . [l]etter and the bulk of associated communications are predecisional because the decision to request a citizenship question itself triggered a new and related series of substantive policy judgments about how best to formulate and justify such a request in the first instance, which reasons to provide and which to omit, and what limitations to impose on the request."

    Additionally, the court determines that "all of the . . . [l]etter drafts, and most of the associated email communications, are also deliberative."  The court notes that "[t]he withheld documents [consisted of an] unfinished, work-in-progress policy letter, along with emails exchanging ideas about what that statement should or should not say."  The court determines that "[s]uch '[p]roposed drafts of a non-final agency decision that are still undergoing review, debate, and editing' constitute 'deliberative work in progress[.]'"  The court also notes that "[DOJ] . . . met its burden to explain what role the communications played in the deliberative process."  "[DOJ] identified (i) who sent and read the files at issue by name and position within the agency, (ii) what stage of the process they addressed, with specific reference to the state of the draft, and (iii) what the comments involved, such as language changes and other recommendations about the best way to articulate the precise content of and justifications for this new agency policy."  Additionally, "[t]he declarations and redacted emails . . . explain[ed] how 'the withheld material facilitated agency deliberation.'"  "They show that [the] documents contain close line edits and editorial suggestions by named officials in the Department of Justice—most of them senior—on a letter staking out the agency position on an issue they considered sensitive, important, and potentially controversial."

    Appellee argued that "[l]etter documents cannot be deliberative because they are postdecisional."  The court responds that "[b]ecause . . . the formulation of the final . . . [l]etter itself involved the type of predecisional discretionary judgments, consultations, and policy calls that the deliberative process privilege protects, this argument fails."  Appellee further argued that "that permitting the withholdings . . . undermines the goals of the deliberative process privilege."  The court disagrees, noting that "[d]isclosing internal deliberations about controversial issues, like those at issue here, can be especially likely to endanger 'candid discussion within the agency.'"  "In such circumstances, the exemption plays an important role in protecting government employees who may feel pressure to 'carefully toe the party line' just when critical debate is needed most."

    Finally, the court finds that "[w]hile most of the documents were properly withheld, the record leaves unsettled the propriety of the Justice Department's redaction of five emails."  "In particular, several of the emails appear to postdate the letter-drafting process, meaning they would not be exempt on the current record."  "So we remand as to those documents for the district court to reconsider consistent with this opinion."
Court Decision Topic(s)
Court of Appeals opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Updated June 7, 2022