Found. for Gov’t Accountability v. DOJ, No. 22-252, 2023 WL 5510417 (M.D. Fla. Aug. 25, 2023) (Badalamenti, J.)

Found. for Gov’t Accountability v. DOJ, No. 22-252, 2023 WL 5510417 (M.D. Fla. Aug. 25, 2023) (Badalamenti, J.)

Re:  Request for records concerning Executive Order 14019 (“EO 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 in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he documents withheld include email chains . . . , email attachments . . . , and a separate 15-page PDF containing DOJ’s strategic plan for implementing EO 14019 (the “Strategic Plan”).”  “All these documents were withheld by DOJ pursuant to Exemption 5’s deliberative process privilege, but the Strategic Plan was also withheld pursuant to Exemption 5’s presidential communications privilege.”
  
  First, the court relates that “DOJ asserts that Vaughn Index entry 12 – entitled ‘[Draft] CRT memo on IPC to Implement Voting EO.docx’ – was properly withheld in full.”  “In the Vaughn Index, the DOJ describes entry 12 as ‘a draft document proposing answers to questions presented by the WHCO, containing potential DOJ actions and issues related to the implementation of Executive Order 14019.’”  “The Vaughn Index further notes that ‘[t]he draft responses also include redline edits.’”  “The Court agrees that the document was predecisional.”  “First, the document’s unfinished state – including redline edits – indicates that it does not represent a final determination or policy from the DOJ.”  “Furthermore, because the document was drafted on April 19, 2021, and the Strategic Plan was drafted on September 23, 2021, it is clear that these drafts pre-date the final Strategic Plan memorandum.”  “Finally, insofar as the document was drafted in order to answer questions posed by the White House Counsel’s Office, it was not ‘peripheral to actual policy formation’ but instead had an influence ‘on the formulation or exercise of policy-oriented judgment.’”  “Accordingly, the DOJ’s description of the withheld material confirms that such material is predecisional and deliberative.”  “While the Court agrees [with plaintiff] that if there were factual materials contained in the draft document, they would need to be released, . . . there is no indication based on the DOJ’s description of the document in the Vaughn Index or [defendant’s] description of the document in his affidavit, that the document contains factual material.”  “Instead, [defendant] stated that ‘[t]he draft document contains potential DOJ actions and potential issues related to the implementation of Executive Order 14019.’”  “The identification of potential actions and issues does not strike the Court as purely factual material, as it instead evinces the ‘exercises of discretion and judgment calls’ typical of the content of documents where Exemption 5 properly applies.”
  
  Second, the court relates that “DOJ also asserts that Vaughn Index entries 17 and 51 – an email chain with the subject line ‘RE: Voting EO Meeting’ – were properly withheld in part.”  “In the Vaughn Index, the DOJ describes entries 17 and 51 as an ‘Email chain among CRT attorneys and other Executive Branch employees.’”  “‘Withholdings consist of deliberative discussions of legal research, suggestions, and proposed actions related to the implementation of Executive Order 14019.’”  “In sum, the withheld portions include:  (1) a research question, (2) discussions about resources on voting rights, (3) commentary and feedback on resources, and (4) recommendations.”  “All of these materials are pre-decisional in that they were ‘prepared in order to assist an agency decision maker in arriving at his decision.’”  “Specifically, all of these materials were prepared prior to, and in furtherance of, the ODAG employee’s decision.”  “Further, the Court finds that the withheld portions of entries 17 and 51 – insofar as they include questions, answers, comments, and recommendations – are deliberative because they ‘reflect[ ] the give-and-take of the consultative process.’”  “The email chain is therefore a clear example of ‘communications [that], if revealed, would expose to public view the deliberative process of an agency.’”  “The Court therefore finds that based on the information in [defendant’s] declaration, Exemption 5 applies to the materials that the DOJ withheld from the email chain because such materials were sent in the midst of a pre-decisional and deliberative process.”  The court also finds that “[i]t appears that DOJ did segregate non-exempt material from the email threads, because the withholdings in the email chains were only partial.”  Additionally, “there is no record evidence supporting a finding that DOJ did not segregate non-exempt material from the email threads.”
  
  Third, the court relates that “DOJ next argues that Vaughn Index entries 53 and 71 – a Word document email attachment titled, ‘Meeting with voting rights advocates – 7.13.2021 clean.docx’ – were properly withheld in full (entry 71) and in part (entry 53).”  “Specifically, in the Vaughn Index, the DOJ describes entries 53 and 71 as a document ‘consist[ing] of notes that a DOJ employee took during a listening session with stakeholders on voting rights issues in order to inform Executive Branch deliberations on compliance with Executive Order 14019.’”  “Certainly, the notes were pre-decisional in that they reflected ‘ideas for what federal agencies could do to promote access to voting pursuant to the Executive Order,’ and the notes were meant to be shared with other DOJ colleagues.”  “Viewing the facts in the light most favorable to the DOJ, the Court cannot determine as a matter of law that the notes were deliberative under Exemption 5.”  “That is, if the notes are subjective, reflecting . . . views about the matters discussed at the ‘listening session,’ then the document might be fairly characterized as deliberative.”  “But if the notes ‘are a straightforward factual recounting of [the] meeting . . . detailing what each of the participants said,’ then the notes are factual and not deliberative and were not properly withheld under Exemption 5.”  “Accordingly, the Court finds that DOJ must produce these documents for in camera review.”
  
  Fourth, the court relates that “DOJ also argues that Vaughn Index entry 132 – a Word document email attachment titled, ‘FIN_Tick Tock for Voting Rights Consultations v2.docx[‘] – was properly withheld in full.”  “In the Vaughn Index, the DOJ describes entry 132 as ‘an agenda for a consultation meeting on Native American voting rights.’”  “‘The document contains embedded talking points and options for participants that were not necessarily implemented at the meeting.’”  “The Court finds that there is no genuine issue of material fact that this document was predecisional and deliberative.”  “First, insofar as the document contained a template White House agenda and draft talking points that were prepared and shared to agency heads prior to the meeting at which they were to be used, the Court finds that the document is predecisional.”  “This is because the agenda and talking points were merely proposals and did not need to be followed as written.”  “The Court also finds that the document found at Vaughn Index entry 132 is deliberative.”  “Even if the template agenda and draft talking points were followed to the letter at the White House meeting between agency heads and tribal leaders on the topic of voting rights, [defendant’s] sworn statement that the purpose of the meeting was to ‘assist[ ] the President in his decisionmaking and gleaning constituent input in the process of shaping policies,’ . . . indicates that the agenda was related to policy development and not-yet-finalized policy decisions.”
   
• Exemption 5, Deliberative Process Privilege & Other Privileges:  The court relates that “DOJ argues that its Strategic Plan was properly withheld-in-full based on the deliberative process privilege and the presidential communications privilege.”  “The Strategic Plan – whose full title is ‘STRATEGIC PLAN for the Implementation of Executive Order 14019, Promoting Access to Voting’ – is described in the Vaughn Index as ‘the Department of Justice Strategic Plan for implementing Executive Order 14019, as solicited by and submitted to the White House.’”
  
  First, the court relates that “FGA argues that under the ‘secret law’ doctrine, DOJ was ‘categorically bar[red]’ from invoking Exemption 5 as to the Strategic Plan, and ‘the Court accordingly does not need to reach whether executive privileges apply to the Plan.’”  The court holds that “[n]owhere, in this text, however, can the Court discern a categorical ban on the invocation of Exemption 5 where ‘final opinions’ or ‘statements of policy and interpretations which have been adopted by the agency’ are present.”  “After a careful reading of Exemption 5’s text, the Court declines to hold that there is a ‘secret law’ exception to the exemption.”  “The Court instead turns to whether the privileges asserted by DOJ under Exemption 5 apply to the Strategic Plan.”
  
  Next, the court finds that “[a]fter careful review, the Court agrees with FGA, and finds that Exemption 5’s deliberative process privilege does not apply to the Strategic Plan.”  “Here, the undisputed record evidence reflects that the Strategic Plan was the DOJ’s finalized answer in response to the White House’s directive in Section 3(b) of EO 14019 that, ‘within 200 days of the date of [the EO], the head of each agency shall submit to the Assistant to the President for Domestic Policy a strategic plan outlining the ways identified under this review that the agency can promote voter registration and voter participation.’”  “The document was sent on September 23, 2021, exactly 200 days after the President issued EO 14019 (March 7, 2021), such that any later version of the document would have failed to comply with section 3(b) of the Executive Order.”  “[T]he Court finds that here, the fact that the document was sent on the last possible day on which agencies could send their proposals to Ambassador Rice indicates that the Strategic Plan was not an opinion that was subject to change.”  “Further, the title of the document does not include the word ‘draft’ or any other term which might indicate that the document contains provisional or unsettled policy.”  “Additionally, [defendant] testified that while the Strategic Plan was ‘marked Pre-Decisional / Deliberative,’ after the FOIA Chief corresponded with the Deputy Associate Attorney General in OASG, ‘[i]t was confirmed that the version provided by the Senior Counsel was indeed the final extant copy as submitted via a secure communication pathway to the Executive Office of the President.’”  “Finally, DOJ has introduced no evidence that the Strategic Plan is not already being applied by DOJ, signifying that the process of formulating possible strategies for achieving the goals set out in EO 14019 has concluded at the agency.”  “Thus, the Court finds that the deliberative process privilege does not apply to the Strategic Plan.”
  
  Then, the court relates that “DOJ next asserts that it properly withheld the Strategic Plan in its entirety pursuant to the presidential communications privilege.”  The court finds that “[t]here is no dispute that Ambassador Rice’s position qualifies her as a ‘White House adviser with broad and significant responsibility for investigating and formulating the advice to be given to the President.’”  “What is disputed, however, is whether the Strategic Plan reflects ‘presidential decisionmaking and deliberations’ and whether the President, or his staff, seemed to have believed that the Strategic Plan ‘should remain confidential.’”  “Based on the summary judgment record before the Court,” the court finds that “[t]he Strategic Plan was drafted in response to a public, widely disseminated executive order, which specifically outlined issues, which each agency head should consider in formulating a strategic plan geared towards achieving the executive order’s goals.”  “Compared to data regarding U.S. Government spending on military support for a country at war, information unearthed about a Supreme Court nominee in an FBI background investigation, or confidential conversations in the Oval Office between a President and his aides during a criminal prosecution, . . . an agency’s plans for improving its website and social media presence, distributing voter registration forms, and providing voter registration services are simply not akin to the type of ‘high-level communications’ critical to ensuring that the President may ‘effectively and faithfully carry out his Article II duties,’ . . . .”  “Given that ‘[c]onfidentiality is the touchstone of the privilege, for ‘[c]onfidentiality is what ensures the expression of candid, objective, and even blunt or harsh opinions’ and the comprehensive exploration of all policy alternatives before a presidential course of action is selected,’ the Court, viewing the evidence in the light most favorable to the DOJ, cannot find as a matter of law that DOJ properly withheld the Strategic Plan pursuant to the presidential communications privilege at this juncture.”  “Further, nowhere in [defendant’s] declaration does she state explicitly that the Strategic Plan is confidential or that ‘the President believes [the Strategic Plan] should remain confidential.’”  “[T]he basic contours of the Strategic Plan were known to the public well before the Strategic Plan was made, insofar as the agencies were directed by section 3(a) of EO 14019 to include each of the above-quoted issues in their ‘evaluat[ion of the] ways in which the agency can, as appropriate and consistent with applicable law, promote voter registration and voter participation.’”  “That is, the decision to ‘promot[e] access to voting’ had already been made by the President by virtue of the issuance of EO 14019, and the topics that the agencies were asked to cover in their evaluations of ways to promote access to voting were already outlined in Section 3(a).”  “The fact that the framework, goal, and issues to be considered in the Strategic Plan were already decided by the White House in a public manner indicates that the information and advice given to the President through DOJ’s Strategic Plan would not be very ‘frank’ and ‘unfettered’ to begin with.”  “Nor would the Strategic Plan’s utility to the President’s decision-making about ‘promoting access to voting’ be particularly robust insofar as it post-dated the President’s determination . . . .”  “In sum, a trier of fact could reasonably find that the President did not believe that the Strategic Plan ‘should remain confidential’ because the policy prescriptions to be embodied in the Strategic Plan were made public in EO 14019.”  “The Court next finds that a trier of fact could reasonably find that the Strategic Plan was unrelated to presidential decisionmaking.”  “First, there is no text in EO 14019 suggesting a give and take process between agencies and the White House as to the information contained in the Strategic Plan.”  “Nowhere in EO 14019 is the word ‘advice’ or ‘recommendation’ used with respect to the Strategic Plan, nor is there any indication from the text of EO 14019 that the White House would be giving feedback to the agency on their planned course of action.”  “This is notable because elsewhere in EO 14019 the term ‘recommendation’ is used to direct other entities within the Executive Branch to conduct specific tasks in furtherance of the goals outlined in EO 14019.”  “Given the lack of clarity surrounding the Strategic Plan’s purportedly advisory role, the Court finds that a reasonable interpretation of section 3(b) would be that the White House is requesting the agencies to report on their intended plans, thereby assuring agency compliance with, and promotion of, the goals of EO 14019.”  “The Court therefore cannot find based on the evidence before it that the Strategic Plan constitutes an aspect of presidential decision-making.”  “[T]he Court concludes that in camera review of the Strategic Plan is the appropriate means to resolve the parties’ dispute.”