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Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of State, No. 20-2044, 2022 WL 424965 (D.D.C. Feb. 11, 2022) (Cooper, J.)


Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of State, No. 20-2044, 2022 WL 424965 (D.D.C. Feb. 11, 2022) (Cooper, J.)

Re:  Request for records concerning State Department's "handling of document and testimony requests from congressional committee chairs"

Disposition:  Denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  As to the first category of records, the State Department has adequately established that this material is predecisional but has not demonstrated that it is also deliberative . . . ."  "Neither the emails nor the underlying draft letters [of congressional correspondence] represented the Department's final view on how to respond to the congressional inquiries at issue."  The court finds that "[t]hese are prototypical predecisional discussions."  As to whether the records are deliberative, "[t]he State Department's evidentiary submissions . . . do not include the level of detail the Court now needs to evaluate the deliberative nature of the emails and draft letters."  "In particular, the Department has not told us 'who prepared the' emails or drafts 'or to whom the[y] were addressed,' nor anything about the 'nature of the decisonmaking authority vested' in the various players, including their 'relative positions in the agency's chain of command.'"  "Nor has the Department told us much about the 'deliberative process . . . involved'—i.e., the 'procedure . . . followed' to consider the draft letters—or the 'role' the material here played 'in the course of that process.'"  "Because the Court cannot yet determine the deliberative nature of the emails and draft letters, it will hold off on evaluating whether the Department has met its other burdens at summary judgment—to show that reasonably foreseeable harm would result from release of any deliberative material, and to demonstrate that it adequately segregated any non-exempt material."  "The Court notes, however, that the Department's current description of the harm that would foreseeably result from the release of this material may, too, be inadequate under the standards the D.C. Circuit has articulated."

    "The Court reaches the same conclusions with respect to the [second] category of documents CREW challenges, which similarly includes internal State Department emails and draft documents."  "These emails are much like the ones evaluated above, as they, too, contain discussions of how to respond to congressional inquiries before any 'final decision about how and whether to engage in a course of action.'"  "The draft reopening plan and emails discussing it are likewise predecisional:  They 'precede[d] a final Department determination regarding whether and how' the Office of Information Programs and Services 'should resume activities.'"  "Once again, the Department has failed to offer the information that . . . is needed to determine whether the documents are deliberative, including the roles and relative positions of the senders and recipients of the emails; details of the specific decisionmaking process; and the way the redacted material aided in that process."   

    "As to the remaining withholding category, however—factual material embedded in an internal progress report—the Court concludes that the Department cannot meet its burden and that CREW is entitled to summary judgment."  "The Department redacted the number of documents and pages transmitted in response to several specific congressional inquiries, as well as the total number sent along for 2019 and the previous two calendar years."  "The Department also redacted a single sentence describing the 'preliminary status' of another State Department office's efforts to respond to a document request."  "Because this status report does not 'communicat[e] the agency's settled position,' [] on whether any potentially responsive documents should in fact be produced, and because CREW does not challenge this point, the Court will accept that the material is predecisional." 

    "The problem for the State Department is that the redacted information is neither itself deliberative, nor the type of factual material that can be shielded by the deliberative process privilege."  "The Department contends that the redacted numbers themselves are deliberative because they represent, in effect, a tally of every time the Congressional Document Production [CPD] branch evaluated a document and deemed it potentially worthy of production."  "In that way, the Department suggests, the numbers are comparable to an initial cost estimate, which, . . . exhibits 'a surface precision,' but in fact 'deriv[es] from a complex set of judgments.'"  "The Court doubts that the same complex set of judgments are at play here."  "Rather, each of the CDP's assessments seems to be binary—responsive or not."  "And once those individual determinations are divorced from the specific documents at issue, the Court struggles to see what deliberative judgment can be gleaned from the total."  "More to the point, the Department never explains the role the numbers here play in any consultative process."  "For similar reasons, the Court rejects the Department's contention that it may nevertheless invoke the deliberative process privilege, even if the material is indeed factual."  "First, the Department suggests that [] the numbers redacted from the IPS Weekly Report, although 'expressed in quantitative terms, . . . are nonetheless opinions rather than facts' because they reflect one office's judgment as to how many documents should be released."  "Second, the Department asserts that disclosure of the twelve redacted lines in this status report would 'necessarily reveal the Department's deliberative process leading up to final release determinations.'"  "[T]he Court does not see what these aggregated and out-of-context updates could meaningfully reveal about any deliberative process."  "Even if the redacted material here is deliberative, the Department has not met its burden to justify withholding it under the FOIA Improvement Act."  The court relates that "[t]he Department's explanation here, however, is all either boilerplate or speculation."  "Accordingly, the Court will deny the Department's motion for summary judgment and grant CREW's cross-motion on that single issue."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Updated March 7, 2022