Jewish Legal News v. U.S. Dep’t of Educ., No. 23-05064, 2025 WL 964032 (N.D. Cal. Mar. 31, 2025) (Kang, Mag. J.)

Jewish Legal News v. U.S. Dep’t of Educ., No. 23-05064, 2025 WL 964032 (N.D. Cal. Mar. 31, 2025) (Kang, Mag. J.)

Re:  Request for records concerning handling of allegations of antisemitism at colleges and universities

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Standing:  The court relates that, “[h]ere, certain redactions and withholdings in the FOIA response to [plaintiff’s] request were originally made in previous FOIA responses.” “[Plaintiff’s] FOIA request sought ‘[a]ny other FOIA requests and responses concerning complaints or allegations of antisemitism on campus.’”  “[Plaintiff] does not have standing to challenge the redactions to, and withholding of, the documents produced in response to those earlier FOIA requests.”
   
• Exemption 5, Deliberative Process Privilege:  The court relates that “[t]he first dispute centers around a purported ‘internal deliberative draft document containing the Department’s Office of Civil Rights’ (“OCR”) response to a question about what the Department is doing to implement Executive Order 13899.’”  The court finds that “[d]raft documents that do not represent final policy are typically protected under exemption 5.”  “Here, the presence of OCR’s edits and comments reflects the agency’s internal deliberation and refinement process.”  “Such draft documents that do not constitute a final policy are exempt from disclosure because they are deliberative.”  “Because the document includes comments and edits prior to the final response, the document at issue is predecisional.” “Accordingly, [the Department of Education (“DOE”)] has met its burden under exemption 5 with regard to [this document].”  “The Parties’ second dispute with regard to exemption 5 centers around a draft version of a policy document, a ‘Dear Colleague’ letter on the topic of ‘Protecting Students from Discrimination Based on Shared Ancestry and Ethnic Characteristics.’”  “After the hearing on the motion for summary judgment, the Parties stipulated to withdrawing the challenges to the withholdings in these pages, with certain exceptions detailed below.”  “The Court granted that stipulation, and accordingly, the dispute is resolved as moot.” “The third and fourth disputes are materially identical.”  “[Plaintiff] seeks summary judgment that the assertion of the deliberative process privilege under exemption 5 should not apply to redactions of emails exchanged with people outside the agency.”  “There appears to be no dispute between the Parties as to the propriety of redacting and withholding emails between the DOE and the White House, where all such emails were sent or received from a governmental email account.”  “The dispute here is focused on the question of whether any of the redacted or withheld emails include emails sent from accounts outside the government.”  “Here, the government’s Vaughn index and arguments make the generalized assertion that these documents are emails between the DOE and the White House, without any specificity as to each document and without identifying the email addresses of the senders/recipients.”  “The DOE has not sufficiently established what any of the challenged email addresses are.”  “They may all be White House email addresses and communications, or they may all be emails sent to and received from email accounts outside the government – there is no way to know based on the DOE’s submissions.”  “The issue here is particularly focused because the DOE has the burden to segregate information in documents.”  “The DOE has not provided sufficient information in the Vaughn index or otherwise to establish that these emails are all within the scope of the privilege, because the redactions prevent determining whether these emails are to or from email accounts inside or outside the White House.”  “As such, the DOE has not met its burden to demonstrate that the redactions as a whole are proper under exemption 5 . . . .”
   
• Exemption 6: The court relates that “[t]he first three disputes under exemption 6 center around the redaction of another FOIA requestor’s name and address; a redaction of a handwritten signature; and redactions surrounding phone numbers.”  The court finds that “[b]ecause [plaintiff] does not oppose part of these categories of redactions under exemption 6, the Court grants summary judgment in favor of the DOE with regard to any redactions under exemption 6 of other FOIA requestors’ names, addresses, phone numbers, or any other personal identifying information of complainants or witnesses.”  “The fourth dispute centers around withholdings that include the identities and other identifying information of individuals who complained of certain discriminatory behavior on university campuses (the ‘Complainants’).”  “The DOE argues that ‘[t]hese complainants shared deeply personal information regarding their experiences with the understanding that their identities were confidential during the investigation process.  Information about their identities does not shed light on DOE’s performance of its statutory duties, and reveals nothing about DOE’s own conduct.’” “While [plaintiff’s] arguments focus solely on the redactions in one sentence, [plaintiff] ignores the remainder of the paragraph (and the remainder of the letter, most of which is unredacted), which sets forth in plain terms and in detail the substance of the complainant’s allegations of discrimination.”  “In balancing the privacy interests here against the alleged need for public disclosure, the Court finds that [plaintiff] has wholly failed to demonstrate any need for the redacted private identifying information of the complainant.”  “The fifth dispute here with regard to exemption 6 relates to the redaction of an email that describes a social media post.”  “DOE does not proffer any information or evidence that this social media post was private or that the account settings at the time of posting limited publication or access to the social media post.”  “Further, the exhibit for this document states that this social media post was emailed by the author to a government employee and that the author retweeted the post.”  “By its nature, ‘retweeting’ indicates a further and potentially wider publication of an original social media posting.”  “Because the DOE has not met its burden, the redaction under exemption 6 to the body of this email regarding a social media post is not sufficiently supported.”  “A related, sixth dispute focuses not on the text of the email discussed above, but rather on the redaction of the personal email account of the person who made the social media post.”  “A personal email address is personally identifying information properly subject to withholding.”  “Beyond this, an individual’s email address is a means for directly contacting someone, which (if publicly disclosed) carries risks of harassment, so-called ‘spamming,’ and generally uninvited communications of all types.”  “Further, it is well-known that an individual’s email address is often linked in online databases and search tools to other personal identifying information, such as addresses, phone numbers, and family members’ identities.”  Responding to plaintiff’s argument, the court finds that “[m]ere curiosity about the possibility of uncovering a private individual’s affiliation with an organization is not sufficient.”  “Accordingly, the Court grants summary judgment in favor of the DOE with regard to the redaction based on exemption 6 as to this email address in its entirety.” “The final exemption 6 dispute centers on [plaintiff] seeking disclosure of the names and titles of university administrators.”  “DOE argues that the redactions of these signatures were applied in response to a separate FOIA request that is not at issue in this action.”  “As discussed above, [plaintiff] lacks standing to argue that the exemptions do not apply to redactions made in response to a separate FOIA request.”
   
• Exemption 7, Threshold:  The court finds that, “[h]ere, the Parties do not dispute that the law enforcement exemption can apply to the DOE.”  “There appears to be no dispute that the DOE Office of Civil Rights serves as a law enforcement agency enforcing certain civil rights laws.”
   
• Exemption 7(A): The court relates that “[t]he first exemption 7 dispute centers on redactions that withhold information on underlying incidents involving certain complainants.”  “The DOE asserts exemption 7(A) with regard to these redactions.”  The court finds that “[plaintiff’s] arguments overlook and ignore the unredacted portions of this exhibit and fail to explain why the disclosed information is insufficient (and fail to explain why the redactions under exemption 7(A) are improper, particularly in light of the text stating that a complainant received a disturbing email).”  Additionally, “[defendant’s] Declaration satisfies the standard for specifying the potential harm that could occur from disclosure of the exemption 7(A) information: ‘release could put victims and witnesses in danger of retaliation and could prevent others from disclosing and/or filing complaints for fear their information will be exposed.’”  “‘Parties could stonewall OCR’s investigation.’” “‘Those involved in the discrimination may destroy, alter, or fabricate evidence.’”  “‘And release of the information could disclose OCR’s investigatory strategies.’”  “[Plaintiff’s] conclusory argument that ‘[i]t is difficult to see how the redactions address the safety of victims and witnesses’ provides no basis to rebut the presumption of good faith attaching to [defendant’s] Declaration.”  “Because [plaintiff] relies on Exhibit H as exemplary for its challenge to the remainder of the exemption 7 redactions, and because as detailed above [plaintiff’s] arguments in this regard and with regard to Exhibit G are meritless, the Court grants summary judgment in favor of the DOE with regard to all the exemption 7(A) redactions and withholdings.”
  
  Regarding another batch of Exemption 7(A) withholdings, the court finds that “the DOE has established that the redactions to [these documents] resulted from the DOE’s response to a separate FOIA request that is not at issue in the action.”  “As explained above, [plaintiff] lacks standing to argue that the exemptions do not apply to redactions made in response to a separate FOIA request.”
   
• Exemption 7(C): The court relates that “[t]he second exemption 7 dispute centers on whether releasing certain information currently withheld under exemption 7 would, when combined with other disclosed details, cumulatively reveal the identities of complainants protected under exemption 6.”  “However, [the court finds that] this issue is mooted as the Court granted summary judgment in favor of the DOE pursuant to exemption 7.”
   
• Litigation Considerations, “Policy or Practice” Claims:  The court finds that “[u]nder applicable legal standards, the DOE September 28, 2023, letter suffices as a determination for purposes of responding to a FOIA request.” “Because the law recognizes that the date of actual production of documents is not the date for a ‘determination,’ [plaintiff’s] arguments that the DOE violated the statute because the agency took several months to process and produce documents on a rolling basis are legally unsound.”  “Because there is no dispute that the DOE responded to [plaintiff] within the required twenty days, and because that response qualifies as a determination, [plaintiff] lacks standing to assert a pattern and practice claim against the DOE.”
   
• Procedural Requirements, Time Limits & Responding to FOIA Requests:  “[T]he Court finds that the September 28, 2023, letter notified [plaintiff] of the DOE’s determination to comply with the FOIA request, and thus satisfied the ‘determination’ and ‘notification’ requirements of Section 552(a)(6)(A).” The court finds that “[plaintiff] asserts without legal support that the letter ‘does not state any information that would allow Plaintiff to determine whether DOE will produce documents and when.’” “That is not the standard required under the statute – the agency is not required to provide a notice of a determination on ‘whether’ the agency ‘will produce documents and when.’”  “The statute by its terms merely requires the agency to determine whether or not it will comply with the request, and so notify the requestor.”  “Telling [plaintiff] that the DOE forwarded the request to personnel to conduct a search for responsive documents constitutes a notification that the DOE is, in fact, complying with the request.”  “Making a search for documents is one of the first steps in complying with a request.”  “If the DOE had determined not to comply with the request, it would have refused to forward the request to anyone to search for any documents.”  “At the time the search starts, the agency has no way to know for certain whether any responsive documents exist and thus no way to know whether any documents ‘will’ be produced or ‘when’ – and Section 552(a)(6)(A) does not impose that requirement.”
  
  “Finally, on reply [plaintiff] argues for the first time that the September 2023 letter was somehow deficient because the ‘response did not give the instructions for appeal.’” “Again, [plaintiff] cites no law to support this argument.”  “The statute does not require an agency to provide any ‘instructions for appeal’ when the agency has determined it will comply with the FOIA request.”  “The statute only requires notification of certain specific information regarding the requestor’s right to appeal (and not ‘instructions for appeal’) only ‘in the case of an adverse determination.’”
   
• Litigation Considerations, Mootness and Other Grounds for Dismissal:  Regarding the response at issue in the above discussion regarding response letter content and time limits, the court finds “alternatively . . . that this cause of action is moot.”  “The DOE . . . argues that [plaintiff’s] cause of action here has been rendered moot.”  The court finds that “the DOE provided its final response on March 11, 2024, and thus finished its production of all nonexempt material.”  “That final response predates the Amended Complaint (the operative complaint in this matter) by about three weeks.”
   
• Litigation Considerations, Adequacy of Search:  “The Court . . . denies [plaintiff’s] cross-motion for summary judgment on the First Cause of Action on the asserted grounds.”  “After carefully reviewing the operative Amended Complaint, the Court finds there is no pleading or mention in the First Cause of Action discussing or mentioning failure to perform a reasonable search.”  “Had the DOE known that this issue was part of this cause of action, the DOE could have moved for summary judgment on this issue as well as discussed below.”  “[Plaintiff] did not adequately plead that the DOE failed to conduct a reasonable search as a basis for its claim that there was a failure to comply with statutory deadlines.”  “Further, a party that agrees to a course of action has waived the right to complain that the agreed-upon course of action is unreasonable.”  “Here, [plaintiff] agreed to the search terms and has thus waived arguing that the search terms are unreasonable.”  “[T]he Court finds that [plaintiff] waived (or is estopped from) arguing that the reasonableness of the search is grounds for [plaintiff’s] cross-motion for summary judgment on the First Cause of Action.” “Accordingly, the Court denies with prejudice [plaintiff’s] cross-motion for summary judgment on the First Cause of Action (Failure to Comply with Statutory Deadlines) on the grounds of lack of reasonable search by the DOE for all the reasons stated herein.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court relates that “[h]ere, the basis of [plaintiff’s] cross-motion for summary judgment primarily rests on how ‘[m]any redactions covered entire pages, and others were not narrowly tailored, covering entire paragraphs.’”  “The Court disagrees with such characterizations and notes that [plaintiff’s] arguments do not rebut the factual showings in the DOE’s declarations submitted on these motions.”  “The DOE’s declarations are sufficiently detailed such that this Court can and will take them at face value.”  “The DOE declarations specify the withheld documents individually, offer a detailed explanation of the withheld material, and identify the applicable exemption (or exemptions) for each.”