Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of State, Nos. 19-1344 & 19-2125, 2022 WL 1801054 (D.D.C. June 2, 2022) (Walton, J.)

Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of State, Nos. 19-1344 & 19-2125, 2022 WL 1801054 (D.D.C. June 2, 2022) (Walton, J.)

Re:  Request for records relating to a telephone conference call on international religious freedom on which then-Secretary of State Michael Pompeo had participated on March 18, 2019

Disposition:  Granting in part and denying in part defendant's and plaintiff's motions for summary judgment

• Exemption 5, Deliberative Process Privilege:  "Here, the Department invokes the deliberative process privilege in regard to 'withheld material that contained discussions among staff regarding planning the technical and substantive details of the conference call [at issue], including debating whom to invite to participate, preparing responses for others who asked to participate, changes to the plans, and the strategy and proposed topics for discussion on the call.'"  "The plaintiffs challenge two specific aspects of the Department's Exemption 5 deliberative process privilege withholdings: (1) the Department's purported failure to provide details on the decisionmaking authority of the employees involved in the withheld communications . . . and (2) details of specific document withholdings."  First, "[t]his Circuit has explained that: [a] key feature under both the 'predecisional' and 'deliberative' criteria is the relation between the author and recipients of the document."  "However, the Department, through the Second Declaration . . . that was filed contemporaneously with the Department's re[p]ly brief, has now made efforts in this regard by 'identif[ying several of] the agency employees involved in the email chains[.]'"  "This subsequent disclosure is sufficient to foreclose the Court from totally concluding that the Department's Exemption 5 redactions were inappropriate due to a purported failure to identify the relationships between communicators." 
  
  As to plaintiff's challenge of "specific document withholdings," "[t]he plaintiffs' first specific challenge . . . concerns a chain of emails between [the "Media Outreach Officer[] in the Office of Press Relations"] and the agency's 'Operations Center' regarding logistical arrangements 'for [the scheduling of an] afternoon's media calls,' including the media briefing call at issue."  "The plaintiffs challenge the following redactions of an individual's name from these emails pursuant to Exemption 5—'[p]lease advise whether [redacted] should be included on any of the[se] calls[,]' and '[redacted] does not need to be included on any of the calls.'"  "This email chain concerns discussions purely related to an administrative matter that occurred for the purpose of determining, categorically, who was invited to the call, and the Operation Center simply executed the Press Office's instructions."  "[T]he single question and definitive answer here in no way equate to 'the type of back-and-forth exchange of ideas, constructive feedback, and internal debate . . . that sits at the heart of the deliberative process privilege.'"  "[T]here was no 'exchange of ideas' here at all."  "In sum, because the Department has not shown that this communication meets the threshold of being deliberative, the Court must conclude that the redacted name of the individual at issue does not fall within the deliberative process privilege and was inappropriately withheld pursuant to Exemption 5." 
  
  "The plaintiffs' second challenge . . . concerns two emails from the Department's 'Operations Center that list the confirmed and pending calls on Secretary Pompeo's schedule.'"  "'[T]he Department . . . released the information about confirmed calls that took place and [properly] limited its withholdings to the unconfirmed calls[.]'"  "Asking the Department for more constitutes '[p]eeking behind [ ] to discern what portions of [the schedule] drafts were and were not incorporated[, which] would reveal the very deliberative process that the privilege protects.'"  "Finally, the plaintiffs argue that the Department has not sufficiently described the foreseeable harm that would result from releasing the redacted document."  "Here, the Department has demonstrated the specific foreseeable harm that would result from the release of the pending call list."  "The Court agrees that disclosure would reveal not only changes in the Secretary's schedule, but also some of the thought processes by which he or she conducts the government's foreign policy." 
  
  "The plaintiffs' final Exemption 5 challenge . . . concerns two chains of emails between Department employees."  "In the first email chain, Department employees 'discuss the invitation list for the [March 18, 2019] call [that is the subject of the plaintiffs' FOIA requests] and how to respond to individuals or organizations who ask to participate in the call but were not on the invitation list.'"  "The second email chain contains an unredacted inquiry from a Washington Post reporter who was requesting to join the call, which resulted in that email being forwarded to other Department employees, one of whom, in a redacted portion of the email chain, 'comments on the inquiry and proposes a response to provide [to] the Washington Post correspondent.'"  "[T]he Court concludes that the Department's explanations satisfy its burden of demonstrating that the deliberative process privilege applies to the withholdings in these documents."  "[T]he redacted communications depict the 'give-and-take of the consultative process[,]' . . . regarding how the Department should respond to media inquiries concerning the Secretary's call."  "Furthermore, regarding the sufficiency of the context provided by the Department, the plaintiffs are incorrect to assert that 'communications solely concerning an agency's proposed response to inquiries from the press and other external entities' are not protected under the deliberative process privilege."  "Certainly, agency explanations with 'broad and vague descriptions' of how a particular document constitutes a press response are not sufficient for the Court to 'determin[e] whether the privilege applies.'"  "But the Department's descriptions here are not deficient."  "The Court also concludes that the Department reasonably foresaw that disclosure would harm an interest protected by the deliberative process privilege, and thus satisfied its burden under the statute."  "[T]he Department specifically focused on the nature of the discussions in these emails, determined that disclosure of that information would chill future internal discussions, and, ultimately, sufficiently explained a foreseeable harm that would result from disclosing the redacted information."  "For these reasons, the Court concludes that, except for the identity of the name of the redacted individual referenced [above], the Department's Exemption 5 withholdings were warranted."
   
• Exemption 6:  "The plaintiff originally argued that the Department's Exemption 6 withholdings were inappropriate as to the domain names."  "[T]he Department represents that, as 'to one document including emails to and from Secretary Pompeo[,]' . . . 'the email domain does not appear on the unredacted version of the document[, and t]he only information under the redaction is the username associated with Secretary Pompeo's "@state.gov' email address.'"  "[T]he Department's representation that it redacted Secretary Pompeo's email username is not sufficiently 'broad and vague' to preclude summary judgment."  Further, "the Court agrees with the Department that the redaction of Secretary Pompeo's email address, even if just the username was present, was appropriate."  "Other courts in this district have recognized that email addresses generally fall within the definition of 'similar files' for the purposes of Exemption 6 and that email address owners have a strong privacy interest in ensuring that they are not subjected to unwanted communications resulting from the disclosure of their email address."  "Releasing the username portion of an email address alone does not always constitute an unwarranted invasion of privacy, however, in its declaration, the Department disclosed the email domain that is associated with the redacted the username."  "Thus, if the Department were to release the username, 'a keen observer could piece together the redacted documents to ascertain the full email addresses.'"  "Furthermore, the Department's explanation for the redaction satisfies its burden under the foreseeable harm standard."  "As the Department aptly represents, disclosure of the Secretary's email username would subject him or her to 'unsolicited or harassing inquiries[,]' . . . and, furthermore, would not 'shed[ ] light on an agency's performance of its statutory duties' or otherwise let citizens know what their government is up to."  "The Court concludes that the former Secretary's email address clearly has a privacy interest that Exemption 6 was intended to protect, and, accordingly, the Department's redaction of the Secretary's email username was permitted under Exemption 6." 
  
  "The plaintiff's second objection regards two emails in which the Department redacted the domain portion of the official Department email address of former Deputy Secretary Sullivan."  "The Court concludes that it need not fully consider the privacy interests that may be at issue here because the Department has failed to show how the domain portion of a government email address constitutes a 'personnel, medical, or similar file[ ]' within the meaning of Exemption 6."  "And, as the plaintiffs correctly indicate, email domains, by themselves, do not refer to any specific individual."  "Perhaps, in some instances, an email domain could be so unique that its release would reveal the identity of the address holder, but this is not the Department's justification for nondisclosure under Exemption 6."  "Instead, the Department contends that it has already 'disclosed [ ] the domain name of [the] email address' in its declarations."  "Because the Department has only disclosed the domain name generally in its declaration, and not within the specific context of the actual records at issue, continued redaction of former Deputy Secretary Sullivan's email domain would be inappropriate."  "Thus, the Department must release these emails without the redaction of the domain portion of former Deputy Secretary Sullivan's email address." 
  
  "The plaintiffs' final Exemption 6 objection concerns the email domain for the private email address of Department employee Andy Schachter."  "But again, the Court concludes that the Department has failed to show that Schachter's personal email domain, alone, and without the disclosure of the accompanying email username, is specific enough to constitute a “personnel, medical, or similar file” within the meaning of Exemption 6."  "Accordingly, regarding Schachter's personal email domain, and as the Court previously determined regarding Former Deputy Secretary Sullivan's email domain, the Court agrees with the plaintiffs that the Department's withholding under Exemption 6 was inappropriate." 
   
• Segregability:  "The Court concludes that the Department has adequately demonstrated that it 'disclose[d all] reasonably segregable material.'"  "The Department released all documents either in full or in part."  "'Otherwise, the Department determined that no segregation of meaningful information in the documents could be made without disclosing information warranting protection under the law.'"  "Based on these representations and on a review of the Department's declarations, the Department's briefs, and the disputed documents specifically provided with the [Department's] Declaration, the Court agrees that the Department only withheld information that is exempt from disclosure and material 'inextricably intertwined with exempt portions.'"