Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of the Treasury, No. 20-2256, 2022 WL 3042180 (D.D.C. Aug. 2, 2022) (Kollar-Kotelly, J.)

Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of the Treasury, No. 20-2256, 2022 WL 3042180 (D.D.C. Aug. 2, 2022) (Kollar-Kotelly, J.)

Re:  Request for records concerning mail-in voting and selection of Louis DeJoy as Postmaster General of the United States

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

• Exemption 5, Deliberative Process Privilege:  The court holds that “[b]ecause USPS3 describes the strategic plan for ongoing, implemented outreach efforts to states, . . . USPS3 ‘simply describe[s] already-made and in-place policy choices.’”  “The Court’s in camera review of USPS3, combined with the context of USPS3 . . . , confirms that the document reflects a final strategic plan the agency implemented.”  The court explains that “while USPS claims the document does not contain the final agency decision, USPS does not maintain that the strategic plan discussed by the document was distinct from the plan later implemented or explain with any detail why the document does not reflect the final agency decision.”  “To the extent the strategic plan outlined in USPS3 reflects ongoing efforts to work with states at the time, the strategic plan outlined in USPS3 was not predecisional because it was in fact ‘adopted, formally or informally, as the agency position on an issue’ and ‘used by the agency in its dealings with’ states.”  “Regardless of whether the ‘final’ agency decision appears in some other, unidentified document, USPS 3 is clearly a final document circulated among USPS that states a final agency position on how to address mail-in voting.”  “As a result, USPS3 is not predecisional and does not fall under the deliberative process privilege.”
  
  Additionally, the court relates that “USPS4 and USPS5 consist of a three-page email chain partially withheld via redactions.”  “The emails, sent on April 22, 2020, involve USPS Board Members . . . who voted on the selection of the next Postmaster General.”  “The emails involve discussion between the Board Members concerning information about individuals who were under consideration for selection as the next Postmaster General.”  “The selection process was ongoing at this time, and the next Postmaster General was not announced until May 6, 2020.”  “The Court concludes the USPS4 and USPS5 were predecisional because the new Postmaster General had not yet been selected.”  “The Court also concludes that USPS4 and USPS5 are deliberative because they document discussion by agency decisionmakers about the ongoing selection process.”  “The Court further agrees that release of these documents would harm the agency’s decisionmaking process by chilling the deliberative process and creating confusion about the agency’s final decisions.”
  
  The court also relates that “USPS9 consists of a redacted email chain and a fully withheld attachment.”  “The emails, dated June 17, 2020 and May 7, 2020, involve discussion between USPS Board Members and a contractor about media strategy in advance of the new Postmaster General’s selection.”  “Although USPS made the initial media announcement of the new Postmaster General on May 6, 2020, the record shows that the process of discussing the new Postmaster General’s selection in the media was ongoing and subject to change.”  “The Court’s in camera review of USPS9 confirms that the email discussion concerned ongoing strategy related to potential media inquiries regarding the new Postmaster General.”  “The Court’s in camera review of USPS9 also confirms that the fully withheld document attached to the emails predates the May 6, 2020 announcement and concerns the details of the selection process.”  “In the context of the email discussion, the document was used to inform the agency’s media strategy regarding the selection.”  “Given this context, the Court concludes USPS9 is predecisional because the discussion concerned strategy to address to future media inquiries regarding the new Postmaster General and the selection process.”  “The Court also concludes USPS9 is deliberative because it reflects the evolving discussion between the relevant agency decisionmakers on the best way to handle media inquiries related to the new Postmaster General.”  “The Court agrees that release of these documents would harm the agency’s decisionmaking process by chilling the selection process and creating confusion about the agency’s final selection decision.”
  
  Finally, the court relates that “Treasury7 consists of an email chain, dated May 6, 2020, between [the] former Assistant to the President and Director of the Office of Legislative Affairs . . . , [the] former Treasury Secretary . . . , and [the] former White House Chief of Staff . . . .”  “The emails involve discussion of potential renewals of the CARES Act and its Paycheck Protection Program as well as other potential coronavirus relief legislation, including the content, timing, and Executive Branch strategy related to such legislation.”  “The Court’s in camera review of Treasury7 confirms that the discussions concerned specific potential proposals for the renewal of the CARES Act that the decisionmakers had knowledge of as well as COVID-19 relief legislation the Executive Branch was considering.”  “Each of the parties involved were high-level decisionmakers in the Executive Branch, and [the former Treasury Secretary’s] role in the discussions reflect his role in the Treasury’s deliberations on how to respond to potential legislation concerning the economy.”  “The Court concludes Treasury7 is predecisional and deliberative because it predated the potential legislation discussed and reflects ongoing discussions about what the agency strategy would be with respect to such legislation by the relevant decisionmakers.”  “The Court agrees that releasing Treasury 7 would harm the agency by chilling the deliberative process and creating confusion about the agency’s final decisions.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  The court finds that “Defendants have complied with those obligations here.”  “Defendants have submitted detailed Vaughn indices that explain the nature of each withheld document and why there is no additional portion of any fully- or partially-withheld document that can be released.”  “Additionally, Defendants’ declarations aver that Defendants conducted a ‘line-by-line review . . . to identify information exempt from disclosure or for which a discretionary waiver of exemption could be applied.’”  “FOIA requires nothing more of Defendants.”