Gellman v. DHS, No. 16-635, 2021 WL 673905 (D.D.C. Feb. 22, 2021) (Cooper, J.)

Gellman v. DHS, No. 16-635, 2021 WL 673905 (D.D.C. Feb. 22, 2021) (Cooper, J.)

Re:  Requests for records concerning plaintiff

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  Regarding a "two-sentence redaction in an email" containing "'a suggestion regarding how the filling of an agency personnel position could address intelligence issues related to the content of Plaintiff's article,'" the court finds that "[defendant's] Declaration shows that those two sentences are deliberative (because they made a recommendation as part of internal agency deliberations about filling a personnel need) and predecisional (because they were written by a junior staffer before the agency made any decision on the matter)."  Regarding plaintiff's argument that "'ODNI has not specified whether the suggestion in this record was adopted by the agency,'" the court finds that "the plaintiff bears the burden to show evidence, beyond mere 'speculation,' that a document has been adopted and thus lost its predecisional status."  Specifically, the court finds that "it makes sense that when the Government asserts that a withheld record is a 'draft,' it should proactively answer the obvious follow-up question of whether the draft has been adopted."  "But it does not follow that all assertions of the deliberative process privilege, including those that do not relate to 'draft' documents, must be accompanied by an affirmative statement of non-adoption."
  
  Regarding "OIP's withholding of drafts of statements to the press," "[t]he Court finds that the Government has adequately demonstrated that these draft statements are protected by the deliberative process privilege."  "As discussed above, plaintiffs generally bear the burden to show that a document has lost its privileged status through adoption."  "But in the narrower context where an agency asserts the deliberative process privilege over 'draft' documents, courts have held, for good reason, that the agency must 'indicate whether the draft was adopted formally or informally, as the agency position on an issue.'"  The court relates that "OIP relied on the 'four corners' of the responsive records at issue – an admittedly imperfect indicator – to determine that the withheld draft press statements do not appear to have been incorporated into final statements."  The court finds that "nothing in the case law, including this Court's prior opinion, indicates that OIP must spare no expense in researching whether any of its draft press statements were adopted as final."  "The question is one of reason."  "As the D.C. Circuit has explained, an agency's search for records responsive to a FOIA request 'need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request.'"  "It makes sense to apply similar logic in judging the adequacy of an agency's corollary search for evidence that might shed light on the exempt or non-exempt status of responsive records."  Here, the court finds that "there are legitimate reasons why OIP does not consider it feasible to conduct an open-ended investigation of what ultimately became of every draft statement – specifically, '[t]he age of the records at issue in this case,' 'personnel changes in the Department [of Justice] since these records were created,' and the lack of a 'repository of [all] "final statements" that OIP can refer back to.'"  "Therefore, it was reasonable for the agency to look to 'the four corners' of the withheld records and decide that, if those records contained no 'leads' suggesting adoption, no further inquiry was needed."
  
  Separately, the court finds that "OIP . . . properly justified its withholding of the February 2014 email."  The court relates that "[a]ccording to [defendant's declaration], the February 2014 email 'contains both a reaction to a news article and an articulated proposed future decision.'"  "'More specifically,' Brinkmann explains, the email's author 'asks questions about a particular aspect of the news article in the context of making suggestions and soliciting input on how to respond to that part of the article.'"  "She further attests that 'attempting to segregate any of the information that is a reaction would necessarily reveal information that continues to be withheld pursuant to Exemption 5 as an articulated proposed future decision.'"
  
  Finally, regarding the "withhold[ing] [of] briefing materials written to help then-Attorney General Holder and other senior DOJ officials prepare for conversations with journalists," the court finds that "[defendant's] explanation suffices to justify OIP's withholding of the factual material in the briefing documents."  "Importantly, [defendant] does not merely recite the legal truism that a 'decision to include or exclude certain factual information can itself shed light on the Department's deliberative process.'"  "Rather, [defendant] attests that the specific documents at issue are 'meant to provide Department officials with relevant background information . . . so the official may use that selected background knowledge in the official's internal deliberation' about what to tell the press."  "In other words, the very purpose of the briefing materials is to suggest and recommend facts for DOJ leadership to highlight publicly."  "Those facts are therefore 'inextricably intertwined' with the deliberative aspects of the briefing materials."  Responding to plaintiff's argument, the court finds that "[plaintiff] misconstrues the case law on waiver of the deliberative process privilege."  "A document that makes recommendations to a senior agency official in anticipation of an engagement with journalists does not lose its privileged status simply because the official uses the document as intended and follows some of its recommendations."  "Here, the record does not indicate that any official waived privilege over the briefing materials by reciting them to the press."  "To the contrary, [defendant] expressly asserts that 'OIP has been unable to identify any public statements matching to the briefing materials, or any indication that the Department (or Mr. Holder) expressly adopted the document's reasoning as its own or published the document.'"