The Found. for Gov’t Accountability v. DOJ, No. 22-00252, 2024 WL 5111659 (M.D. Fla. Dec. 13, 2024) (Badalamenti, J.)

The Found. for Gov’t Accountability v. DOJ, No. 22-00252, 2024 WL 5111659 (M.D. Fla. Dec. 13, 2024) (Badalamenti, J.)

Re:  Request for records concerning Executive Order 14019, which directed head of each executive agency, including DOJ, to submit to White House a Strategic Plan outlining ways the agency can promote voter registration and voter participation

Disposition:  Granting defendant’s renewed motion for summary judgment; denying plaintiff’s renewed cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court relates that “[the] Court ordered in camera review of entries 53 and 71 of DOJ’s Vaughn Index because it could not determine as a matter of law if the notes were properly withheld under Exemption 5’s deliberative process privilege simply by reviewing the Vaughn Index and the declarations submitted by DOJ.”  The court explained in a previous opinion that these entries consisted of “an email chain with the subject line ‘RE: Voting EO Meeting.’”  “After [the] Court’s careful in camera review of the documents listed as entries 53 and 71, it finds that entries 53 and 71 fall within Exemption 5’s deliberative process privilege.” “First, it is clear that entries 53 and 71 do not constitute a verbatim transcript of that meeting.”  “Instead, entries 53 and 71 are a compilation of fragmented notes taken by a DOJ employee that memorializes a July 12, 2021, listening session involving the sharing of ideas and potential strategies with White House and other executive branch officials by several stakeholders, such as various voting rights advocates, to inform Executive Branch deliberations on compliance with Executive Order 14019.”  “The Court also finds that nothing in these notes indicates anything more than blurbs jotted down by an executive official as he or she listened to stakeholder comments suggesting potential ways the executive agencies subject to Executive Order 14019 could implement policies to increase voter registration and participation.” “This finding of fact supports the Court’s conclusion that entries 53 and 71 represented an engagement in the pre-decisional deliberative process, which is covered under Exemption 5’s deliberative process privilege.”  “The Court therefore grants summary judgment to DOJ with respect to Vaughn Index entries 53 and 71.”
   
• Exemption 5, Other Privileges:  “The Court also previously held that there was a genuine dispute of material fact as to whether the presidential communications privilege applies to the DOJ’s Strategic Plan and ordered an in camera review of that document as well.”  “[T]he Court first turns to [plaintiff’s] assertion that the presidential privilege as to DOJ’s Strategic Plan has been waived through the publication of ‘Fact Sheets’ or strategic plans by executive agencies.”  “DOJ refutes [plaintiff’s] position that the release of other executive agencies’ respective fact sheets and strategic plans waives the presidential communications privilege regarding the DOJ Strategic Plan.”  “The Court respectfully disagrees with [plaintiff’s] position.”  “First, . . . the White House here did not authorize the release of any agency’s fact sheets or strategic plans.”  “Second, . . . DOJ did not invoke its privilege until after the suit was filed here.” Finally, . . . this Court holds that the release of a fact sheet or other executive agencies’ strategic plans does not constitute a waiver of the presidential communications privilege in regard to the DOJ Strategic Plan.”  “Thus, the presidential communications privilege has not been waived for all the reasons stated above.”  “Having determined that the presidential communications privilege has not been waived, the Court addresses the remainder of [plaintiff’s] arguments.”  “First, [plaintiff] argues that DOJ cannot withhold its Strategic Plan based on the presidential communications privilege because the President has not personally invoked the privilege.”  “[The] Court disagrees and holds that the President’s personal invocation is not required in the context of FOIA requests.”  “Instead, the relevant inquiry is whether the communications in dispute were authored or, solicited and received, by the President’s key advisors or staff responsible for formulating advice to the President.” “[T]he DOJ Strategic Plan was solicited through EO 14019 so that the President could make decisions to inform future policy developments on voting access.”
  
  “Next, [plaintiff] argues that the DOJ Strategic Plan reflects DOJ’s decisionmaking, not President Biden’s, and that EO 14019 asked DOJ to identify the ways it could promote voter registration and participation.”  “The Court disagrees.”  “The Court finds DOJ has submitted sufficient evidence that the strategic plans created pursuant to EO 14019 were submitted as part of a ‘back-and-forth, iterative’ policy-making process between the White House and DOJ concerning access to voting.”  “Even more critically, DOJ has submitted evidence that the DOJ Strategic Plan informed the President on areas where ‘Executive Branch action might be needed or considered within the scope of the President’s authority.’”  “This is important because it demonstrates that the DOJ Strategic Plan was intended to put forth proposals that ‘ultimately [called] for direct decisionmaking by the President.’”
  
  “Turning to the issue of confidentiality, the Court was initially unable to determine if the DOJ Strategic Plan was entitled to the presidential communications privilege because, at the time of DOJ’s first motion for summary judgment, DOJ had not presented evidence that the DOJ Strategic Plan is confidential or that the President believes it should remain confidential.”  “DOJ has supplemented the record by clarifying this issue through the Sauber Declaration, which states that the White House believed the agencies would not make their strategic plans public.”  “The Court finds no record evidence that the DOJ Strategic Plan was shared widely or disseminated to staffers who served in non-advisory roles.”  “As such, the Court is satisfied that the DOJ Strategic Plan was treated as a confidential document.”  “Finally, the Court also agrees with DOJ that it has made a sufficient showing of foreseeable harm to have withheld the DOJ Strategic Plan under the presidential communications privilege.”  “Courts consistently note the potential chilling effects on confidential and candid presidential decisionmaking as sufficient identification of foreseeable harm should certain documents be publicly disclosed.”  “Here, DOJ has carried its burden through the submission of two declarations . . . .”  “[Defendant’s] First Declaration states that ‘there is reasonably foreseeable harm in the release of the DOJ Strategic Plan, given the detriment to White House and inter-agency collaboration and decisionmaking that would result if it were to be disclosed.’” “The Second . . . Declaration also identifies another foreseeable harm:  public confusion could arise if the Strategic Plan were released regarding ‘which proposed future actions became operative and which did not.’”  “The Court finds that these statements of foreseeable harm are sufficient.”
   
• Exemption 5: The court relates that “[plaintiff] also argues that the Strategic Plan falls outside Exemption 5’s protections because it constitutes ‘secret law.’”  “The Court previously rejected this argument . . . and does so again here.” “The evidence produced by DOJ establishes that the Strategic Plan is not ‘secret law.’”  “Instead, the Strategic Plan ‘is essentially a snapshot in time that includes some proposed future actions that were implemented after the plan was submitted to the White House, and others that were never implemented.’” “Therefore, the Strategic Plan cannot be ‘secret law’ because it does not ‘embody the agency’s effective law and policy . . . .’”