Citizens for Responsibility & Ethics in Wash. v. GSA, No. 18-377, 2019 WL 1046366 (D.D.C. Mar. 5, 2019) (Cooper, J.)

Citizens for Responsibility & Ethics in Wash. v. GSA, No. 18-377, 2019 WL 1046366 (D.D.C. Mar. 5, 2019) (Cooper, J.)

Re:  Request for records concerning decision to cancel project for new FBI headquarters

Disposition:  Denying defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court holds that "["document titled 'Findings and Determination' ('F & D') that explained the agency's decision to cancel the swap-relocation project"] is plainly not predecisional."  "To start, consider the document's authors" who "appear to be individuals with significant 'decision-making authority.'"  The court finds that "[i]t is clear that the F & D was intended to be 'an expression of the agency's official position' rather than an 'expression of the individual author's views.'"  "The F & D does not contain 'recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.'"  "Totally missing from the document are any of the hallmarks of predecisional give-and-take, such as a recommendation to take a particular course of action or a weighing of alternatives."  "The F & D instead contains exactly what its title suggests it contains: the agency's determination and the findings that support that determination."  "The document is announcing what the agency is doing (and why), not arguing for what it should be doing."  The court relates that "GSA complains that forcing it to provide an unredacted version of the F & D 'may cause substantial harm to the agency's bargaining position with any potentially successful offerors to the agency's future plans for the FBI Headquarters Project.'"  "That may be true, but it does not rebut [plaintiff's] argument that the F & D is post-decisional and therefore not properly protected under Exemption 5."