Ctr. for Pub. Integrity v. FEC, No. 17-1162, 2018 WL 4473515 (D.D.C. Sept. 18, 2018) (Cooper, J.)

Date: 
Tuesday, September 18, 2018

Ctr. for Pub. Integrity v. FEC, No. 17-1162, 2018 WL 4473515 (D.D.C. Sept. 18, 2018) (Cooper, J.)

Re:  Request for records seeking all communications regarding an anonymous social media account using the FEC's name and e-mail communications with the Executive Office of the President (EOP)

Disposition:  Granting defendant's Motion for Summary Judgment; denying plaintiff's Cross-Motion for Summary Judgment and Motion for In Camera Review

  • Exemption 5, Deliberative Process Privilege:  The court finds that, [t]he FEC has met its burden of demonstrating the applicability of Exemption 5 and the deliberative process privilege."  "The agency's declaration explains that the withheld emails 'consisted of communications among attorneys at different levels in the FEC's Office of General Counsel working to identify and analyze potential legal issues that the altFEC Twitter account might raise.'"  "In other words, agency lawyers were engaged in a back-and-forth discussion on a specific legal question."  The court holds that, "[t]here can be no doubt that such legal advice, given in the form of intra-agency memoranda prior to any agency decision on the issues involved, fits exactly within the deliberative process rationale for Exemption 5."

    "Factual information is generally not covered by the deliberative privilege exemption."  "However, such information 'may also be withheld as deliberative material when it is so thoroughly integrated with deliberative material that its disclosure would expose or cause harm to the agency's deliberations.'"  The court finds that, "[a]ccording to the agency's declaration, that is the case here, and plaintiff has produced no evidence of agency bad faith to suggest otherwise."  "Moreover, to the extent plaintiff counters that there must be some non-exempt information that can be released like the names of senders and recipients, the FEC has disclosed that very information in the Vaughn index attached to its reply."  "Requiring the agency to release additional factual information beyond that in the Vaughn index would risk revealing the underlying deliberations themselves."  "Thus, plaintiff's challenge to the FEC's response on this basis fails as well."  "Plaintiff also objects to the FEC's reliance on FOIA Exemption 5 to redact responsive documents related to its EOP.gov request."  "According to the agency, the agenda was redacted because 'disclosure would reveal preliminary plans regarding subjects to be addressed in a future meeting.'"  The court finds that, "[a] meeting agenda prepared before the meeting is necessarily predecisional and inherently deliberative in that staff are suggesting the topics to be discussed at the meeting."  "Other courts in this district have likewise concluded that an agency properly redacted the contents of a typed meeting agenda pursuant to the deliberative process privilege of FOIA Exemption 5."  "Thus, the FEC has met its burden of demonstrating that the redacted agenda is covered by the deliberative process privilege."

    "The second [document] . . . was partially redacted because the email contains 'suggestions regarding assessments of agency management of information resources.'"  "In other words, relevant agency experts engaged in back-and-forth consultation about possibilities for evaluating the manner by which agencies handle data and other forms of information."  The court finds that, "[a]s such, this email reflects 'recommendations[ ] and deliberations comprising part of the process by which government decisions and policies'—such as how to evaluate information resource management—'are formulated.'"  "Thus, the FEC has met its burden of demonstrating that the redacted discussion is covered by the deliberative process privilege."
     
  • Litigation Considerations, In Camera Inspection:  The court finds that, "[i]n camera review is not necessary here."  "The agency's declaration and Vaughn index provide sufficiently specific information for the [c]ourt to determine that the documents in question were properly withheld or redacted pursuant to the deliberative process privilege, and there is no evidence to the contrary."

 

Topic: 
District Court
Exemption 5
In Camera Review
Litigation Considerations
Updated January 31, 2019