Elec. Privacy Info. Ctr. v. DOJ, No. 17-00410, 2018 WL 3910831 (D.D.C. Aug. 15, 2018) (McFadden, J.)

Elec. Privacy Info. Ctr. v. DOJ, No. 17-00410, 2018 WL 3910831 (D.D.C. Aug. 15, 2018) (McFadden, J.)

Re:  Request for records about evidence-based assessment tools that sought to predict statistical probability of an individual's recidivism

Disposition:  Granting defendant's motion for summary judgment, denying plaintiff's cross-motion for summary judgment

• Exemption 5, Presidential Communications Privilege:  The court notes that, "DOJ relies on the presidential communications privilege to withhold the Predictive Analytics Report in full."  "[DOJ] explains that the White House 'solicited and received' the Report from the Department."  The court finds that, "this the Report enjoys protection from disclosure as a communication 'solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.'"
   
• Exemption 5, Deliberative Process Privilege:  The court finds that, "the selection or organization of facts can be part of an agency’s deliberative process and so exempt from FOIA."  "[T]he research was prepared to influence the decisions that went into drafting the Predictive Analytics Report, and the briefing was prepared to influence decisions about the Report and about how to discuss it."  "This places the research and briefing materials within the scope of the deliberative process privilege absent contrary record evidence or evidence of agency bad faith."  "Because EPIC has not overcome the presumption of good faith that the Department's affidavit enjoys" the court finds that, "the factual content in the materials is intertwined with the Department's deliberative process and properly withheld under Exemption 5."
   
• Exemption 5, Threshold:  "Plaintiff also argues that the Department's withholding of consultant research unjustifiably treats research prepared by outside consultants as intra-agency records subject to Exemption 5."  The plaintiff "notes that the so-called consultant corollary applies only to consultants who are not advocating their own interests."  The court finds that, plaintiff has identified no evidence suggesting that the Department has withheld records submitted by alleged consultants who were advocating their own interests."