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Color of Change v. DHS, No. 16-8215, 2018 WL 3350327 (S.D.N.Y. July 9, 2018) (Pauley, J.)


Color of Change v. DHS, No. 16-8215, 2018 WL 3350327 (S.D.N.Y. July 9, 2018) (Pauley, J.)

Re:  Request for eight draft versions of a never-finalized intelligence assessment and related email

Disposition:  Granting defendant's motion for partial summary judgment; denying plaintiffs motion for partial summary judgment

  • Exemption 5, Deliberative Process Privilege: The court finds that "[the] papers, prepared by an analyst and an intern, reflect the preliminary processes through which DHS policy is created."  Additionally, "[r]elease would reveal the give-and-take through which agencies ultimately reach their positions[,]" would reveal "internal considerations on whether to issue the assessment[,]" and "'might mislead the public as to the agency's reasoning, which it is entitled to keep private in the spirit of free discussion. . . .'"  The email similarly "provided guidance on how to alter the proposed assessment" and "was therefore predecisional, in that it reflects the process though which policy papers are created."  The court finds that "Plaintiff's conflation of a 'final' draft with a final agency assessment poses the very risk that the deliberative process privilege is meant to protect against – public confusion over agency official policy, which may chill frank and candid discussion among government employees."  The court further holds that "the factual portions of the drafts demonstrate DHS's deliberative process" because "they are interwoven with the paper's policy judgments." 
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Updated December 1, 2021