Citizens for Resp. & Ethics in Wash. v. DOJ, No. 23-262, 2024 WL 3858560 (D.D.C. Aug. 19, 2024) (Boasberg, C.J.)

Citizens for Resp. & Ethics in Wash. v. DOJ, No. 23-262, 2024 WL 3858560 (D.D.C. Aug. 19, 2024) (Boasberg, C.J.)

Re:  Request for records concerning deployment of DOJ personnel to monitor elections in certain states

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

• Litigation Considerations, Evidentiary Showing, Vaughn Index:  The court relates that “[plaintiff] protests that DOJ cannot rely solely on an unsworn and unattributed Vaughn Index to bolster its withholdings because a motion for summary judgment in the FOIA context must be supported by evidence meeting the requirements of Federal Rule of Civil Procedure 56(c)(4) – that is, an affidavit or declaration ‘made on personal knowledge’ and ‘set[ting] out facts that would be admissible in evidence.’”  The court finds that, “[c]ontrary to Plaintiff’s assumption, . . . a Vaughn Index that is unsworn (as Plaintiff acknowledges they typically are, id.) can support an agency’s motion for summary judgment on its own.”  “The purpose of the Index is not to serve as testimonial evidence but to ‘correlate statements made in the Government’s refusal justification with the actual portions of the document,’ . . . and thereby ‘give the reviewing court a reasonable basis to evaluate the claim of privilege.’”  “A sworn declaration is but an alternative or complementary means of discharging that function.”  “The absence of one incorporating the Index does not ipso facto render the Government’s Motion deficient.”

• Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he records for which Justice has claimed this privilege may be sorted into three broad categories.”  “Within the first are weekly reports – exclusively from the May production, which totaled 29 pages – on the work of the Disability Rights Section prepared by its Deputy Chief and consisting of ‘litigation and investigation updates[,] . . . including descriptions of case status, assessments of the matters discussed, arguments being set forth and recommended actions.’”  “The second consists of emails released as part of the May production, which generally involve poll-monitoring assignments and reactions to the Missouri Secretary of State’s refusal to allow DOJ monitors inside the state’s polling sites.”  “And the third covers the entirety of the August production (126 pages), which contains email exchanges among CRT lawyers and (in some cases) with AUSAs on a litany of other topics, including poll-monitoring plans in various jurisdictions and an ADA Title II investigation into an undisclosed county.”  “Some of the documents are withheld in full, but the majority are withheld in part.”  “As to the weekly reports, [the court finds that] the basis the Government has asserted for regarding them as predecisional and deliberative is that they ‘are requesting or awaiting approval to initiate new or additional law enforcement activities such as lawsuits or consent decrees as well as extensions of supervision and [are] being provided to the Department for awareness and potential input.’”  “But even if these reports predate key decisions in the matters they summarize, it seems a stretch to characterize them as ‘deliberative.’”  “As is apparent from the Court’s review, the summaries do not themselves ‘request’ or ‘await’ approval for law-enforcement activities, but simply state that such requests have been or will be made.”  “Nor do they opine on the merits of pursuing any particular enforcement action or intervene in any ongoing discussion with specified interlocutors.”  “They are instead written in a largely factual and descriptive vein and addressed broadly to ‘CRT DRS Section’ as an update on the Section’s upcoming and prior ‘significant activities.’”  “The deliberative-process privilege does not shield such information.”
  
  “Justice’s assertions of the privilege as to the May emails and attachments fare no better because, as Plaintiff points out, . . . the Government has neglected to provide necessary factual context regarding these communications.”  “Beyond the formal titles of the sender and recipient, however, . . . the Court has no information as to their relative authority over which monitors to dispatch where or the specific role of their communications in that decisionmaking process.”  “The Vaughn Index is silent on those matters, . . . and the Berman Declaration is of no use because he did not review these records . . . .”  “Nor can these emails be regarded as obviously deliberative on their face, as some appear to discuss the monitor assignments as a fait accompli.”  “Justice’s justifications for the other May emails . . . have similar problems but arguably to a worse degree.”  “The Vaughn Index characterizes those emails as ‘[d]eliberative discussion[s] between CRT attorneys about poll monitoring in [Missouri,] . . . [including] potential legal issues and strategy’ or simply discussions ‘about poll monitoring plans.’”  “Whereas it seemed that the assignment of monitors was the decision at issue in the batch of emails just discussed, it is entirely unclear what is being decided among this set.”  “That is in addition to the void of information as to who the deciders are and what role these particular emails play in the process.”  “There is simply no clear basis in the Index for treating the redacted communications as predecisional or deliberative.”
  
  “The asserted basis for withholding email messages and attachments from the August production raises the same problems, which the Court need not itemize.”  “Indeed, the lack of detail as to who the ultimate decisionmakers are and how the redacted communications (and attached documents) facilitate deliberation is a consistent deficiency throughout Defendant’s entire Index.”  “And [defendant’s] Declaration, which supplements the Index for any emails recovered from the Voting Rights Section (a subset of the August production), lends no aid – not regarding the decisionmaking authority of the Voting Rights Section vis-à-vis DRS, or the roles of authors and recipients of the emails, or the stage of deliberation reflected in their specific communications.”  “The Court also agrees with Plaintiff that the Government has not sufficiently justified its withholding under this privilege of documents within the August production that it refers to as ‘drafts.’”  “Neither the Vaughn Index nor [defendant’s] Declaration specifies whether the drafts at issue were adopted or explains in further detail the role that they played in the deliberative process.”  “Without more, the Court cannot conclude that they are protected by the deliberative-process privilege.”  “All is not lost for DOJ on this point, however.”  “For certain of the August emails, it is readily apparent from the Court’s in camera review of the redacted information that the discussions are protected by the deliberative-process privilege (the flaws of the Vaughn Index and declaration notwithstanding).”  “These are conversations regarding (1) how to proceed in an ADA Title II investigation into an undisclosed county, including whether to initiate one, which DOJ office should handle it, whether to retain an expert (and which one), what questions to include in an election-monitoring form for that county, what questions to ask a confidential informant, and whether and how the investigation should be closed . . . ; (2) how to respond to press inquiries regarding states’ refusals to allow DOJ monitors inside their polling sites . . . ; and (3) how to communicate with certain local and state election officials in preparation for poll monitoring in their states or respond to their refusals of entry.”  “Internal discussions within an agency regarding how to respond to public authorities and inquiries from the public are often deemed to be protected by the deliberative-process privilege.”  “And the foregoing emails clearly show Department attorneys expressing views and ‘weighing the pros and cons’ of possible responses.”  “The email discussions concerning key investigative decisions and proposed next steps also reflect the kind of ‘brainstorming,’ ‘suggestions,’ ‘opinions,’ and ‘preliminary conclusions’ at the core of what the privilege protects.”
   
• Exemption 5, Attorney Work-Product:  The court notes that “[plaintiff] contests only a few specific invocations of the privilege here.”  “The Court will address them one by one, treating the others not mentioned as conceded.”  “First are ‘descriptions of case status [and] argument being set forth,’ which presumably refer to the May weekly reports.”  “Certain portions of those reports appear to satisfy the ‘because of’ test.”  “The reports were prepared by the Deputy Chief of the Disability Rights Section – a lawyer.”  “According to the Index, the only portions redacted as work product are ‘those where the report consist[s] of evidence or results of investigations, site visits or interviews shared as part of a request or recommendation for legal action.’”  “Necessarily, any such entry would have been created ‘because of’ anticipated legal action.”
  
  “Plaintiff next disputes whether the ‘substance’ of witness complaints, which the Government has redacted, qualifies as work product because the Government does not specify whether they were prepared by an attorney or the witness himself.”  “The Government’s defense is that the records Plaintiff is referring to are actually ‘emails amongst attorneys describing a witness complaint, and legal assessments thereof, not the complaint itself.’”  “The Court’s review of these records confirms that the Government is correct.”
  
  “The last of Plaintiff’s objections is that DOJ has improperly ‘redacted draft letters to county officials that “inform them of the investigation and request[ ] information and materials relevant to an ADA Complaint.”’”  “Such letters, [plaintiff] contends, are ‘[r]outine’ and thus pose little risk of ‘revealing the lawyer’s thoughts.’”  “But [the court finds that the case cited by plaintiff as support] referred to the standard for a document to qualify as opinion (as opposed to ordinary) work product, which is subject to ‘heightened protection.’”  “The at-issue records need not meet that standard to be exempt from disclosure under Exemption 5.”  “Applying the usual standard, the Court agrees with the Government that the records are privileged.”
   
• Exemption 5, Foreseeable Harm and Other Considerations:  The court holds that “[t]he Government faces a final stumbling block, however:  even though the Court has upheld certain of its privilege assertions, the statements in its Vaughn Index and declarations, standing alone, still flunk the foreseeable-harm requirement.”  “Justice’s articulation of the harm from disclosure of any of these records is a single sentence.”  “Such disclosure, it avers, would ‘harm CRT’s ability to freely exercise the kind of prosecutorial dynamic envisioned in the protections afforded to federal agencies for the currently active matters as well as for the prospective law enforcement proceedings for federal voting rights work and federal accessibility work.’”  “This is precisely the kind of boilerplate recitation, untethered to the content of any particular document or category of documents, that [the D.C.] Circuit and courts in this district have deemed insufficient to show foreseeable harm.”
  
  “This deficiency would seem fatal to the Government’s Exemption 5 withholdings across the board.”  “Courts have, however, accepted a less detailed explanation of foreseeable harm when the sensitivity of the withheld information is obvious in context.”  “Only with the benefit of in camera review – which the Government cannot count on in every case and, in fact, often opposes in principle – does the Court find that the withheld pieces of information that it previously concluded are clearly covered by the deliberative process privilege, . . . also meet the foreseeable-harm requirement based on their context and purpose.”  “The decision of when and how to open investigations, whether and how to respond to inquiries by the news media, and how to communicate with local officials about enforcement plans in their jurisdictions and what legal authority to invoke, seem central to CRT’s law-enforcement duties.”  “And the routine disclosure of opinions on those matters would likely have a chilling effect on future deliberations.” 
  
  “Certain of the records withheld under the work-product privilege (and that the Court has not already concluded are shielded by the deliberative-process privilege) would also clearly meet the foreseeable-harm requirement when considered in context.”  “These are (1) a discussion of civil-rights violations and the legal basis for potential next steps in an investigation into a county . . . ; (2) draft election-monitoring forms, which DOJ monitors use to record their observations . . . ; and (3) a draft list of questions to ask a complainant in an interview with DOJ attorneys . . . .”  “Given the role of these records in the Department’s investigative process, it seems obvious that their disclosure would deprive its attorneys of the ‘privacy’ necessary to ‘sift what [they] consider[ ] to be the relevant from the irrelevant facts, prepare [their] legal theories and plan [their] strategy.’”  “The Court has no qualms about concluding that such disclosure may indeed result in the chilling effect the privilege serves to prevent.”
   
• Exemption 7(A):  “Given [the] lack of detail, the Court cannot conclude that any of DOJ’s withholdings are protected under Exemption 7(A).”  The court relates that “Plaintiff does not contest that the withheld materials were compiled for law-enforcement purposes, but it doubts that they relate to any pending law-enforcement proceedings or would interfere with them if released.”  “To facilitate its analysis of those issues, the Court will sort the Exemption 7(A) withholdings into three categories:  (1) DRS’s weekly reports . . . ; (2) email exchanges and attachments concerning poll monitoring, some in connection with an ADA Title II voting investigation and some not . . . ; and (3) email exchanges and attachments purely concerning ADA Title II voting investigations . . . .”  “For each of these sets of records, it is unclear, based on the Court’s review of the materials themselves and the Government’s evidentiary submissions, that they relate to ongoing or anticipated investigations.”  “The weekly reports, to start, clearly summarize updates in investigations being handled by [defendant].”  “But they were issued in November 2022, and the Index does not state explicitly that the matters they summarize are currently ongoing.”  “The Court cannot credit DOJ’s unattributed assertion in its briefing that they are ongoing.”
  
  “As to the emails concerning ADA Title II voting investigations (but not poll monitoring), the bulk of them relate to a specific investigation into an undisclosed county.”  “The Index describes that investigation as ongoing.”  “There is, however, some indication in the unredacted materials submitted in camera that the Department was preparing to close it.”  “And the remainder are simply described as ongoing without further detail.”  “Although that representation does not seem to be contradicted by other evidence in the record, it is insufficient on its own to support a withholding under Exemption 7(A).”  “As to the emails concerning poll monitoring, evidence connecting them to pending or anticipated proceedings is also lacking.”  “For many of them, the Vaughn Index does not even represent that they relate to such proceedings.”  “This proffer is simply insufficient for the Court to conclude with certainty that Exemption 7(A) applies.”
  
  “The Government’s deficiencies are compounded by the frequent lack of information in the Index as to whether disclosure of each withheld item would cause interference with a law-enforcement proceeding.”  “Our Circuit, to be sure, has made it clear that the Government ‘need not proceed on a document-by-document basis, detailing to the court the interference that would result from the disclosure of each of them,’ but ‘may take a generic approach, grouping documents into relevant categories.’”  “But if it pursues the latter route, it must (1) ‘define its categories functionally’; (2) ‘conduct a document-by-document review in order to assign documents to the proper category’; and (3) ‘explain to the court how the release of each category would interfere with enforcement proceedings.’”  “Here, it seems that the Government has taken neither avenue – instead offering some potentially valid theories of interference without tying them to specific redactions or appropriately defined categories in accordance with the foregoing three-step procedure . . . and offering blanket and conclusory statements falling far short of its burden.”
   
• Exemption 7(C):  The court notes that the “application of this exemption is largely undisputed because DOJ has clarified that only names and personal information were redacted under it.”  “Plaintiff, however, continues to oppose the redaction of certain details that it does not consider personally identifying – namely, the polling locations and counties of complainants.”  “The Court agrees that redacting names, phone numbers, addresses, and other identifying details substantially diminishes the privacy interest associated with a complainant’s polling location and county.”  “When weighed against the legitimate public interest in learning the ‘specific counties or polling locations that experienced concerns significant enough to generate a complaint and DOJ’s response,’ . . . Exemption 7(C) poses no barrier to disclosure.”