Skip to main content

Ctr. for Investigative Reporting v. Dep't of the Interior, No. 18-1599, 2020 WL 1695175 (D.D.C. Apr. 7, 2020) (Friedrich, J.)

Date

Ctr. for Investigative Reporting v. Dep't of the Interior, No. 18-1599, 2020 WL 1695175 (D.D.C. Apr. 7, 2020) (Friedrich, J.)

Re:  Request for records concerning Migratory Bird Treaty Act ("MBTA"), as well as records concerning sea level change

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying in part plaintiff's cross-motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  "The Department thus has failed to show that the withholdings discussed in this opinion 'would result in reasonably foreseeable harm to its deliberative process,' and so the Court must deny the Department’s motion."  The court relates that "[plaintiff] does not contest that the Department properly invoked the deliberative process privilege to withhold information under Exemption 5."  "The remaining question the Court must decide is whether the Department has shown that disclosure of this information withheld under Exemption 5 would result in foreseeable harm to the Department's deliberative processes."  Regarding one withholding, the court finds that "the Department has not adequately explained how disclosing this 'particular' record – or some category of substantively related records – 'would harm the agency's deliberative process.'"  "[Defendant] merely asserts, without elaboration, that these harms would result from disclosing 'any' of the records that the Office of the Solicitor withheld under the deliberative process privilege."  "This assertion falls short of 'connect[ing] the harms in any meaningful way' to the withheld notes, 'such as by providing context or insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.'"  Additionally, regarding a second set of withholdings, the court finds that "the Department has not established a reasonably foreseeable link between these harms and the specific information contained in the withheld records."  "First, the Department merely asserts what could happen if this information were released."  "The Department has not even asserted, let alone established, that it is reasonably foreseeable that disclosing these records would lead to these harms."  "But the Department must show that disclosure would cause reasonably foreseeable harms, not that it could cause such harms."  "Second, and as with the [other withholding discussed above], the Department has not provided enough information about these record categories to establish a particular link between their disclosure and these purported harms."  "The Department thus has failed to show that the withholdings discussed in this opinion 'would result in reasonably foreseeable harm to its deliberative process,' and so the Court must deny the Department's motion."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Updated November 10, 2021