Jud. Watch, Inc. v. DOJ, 20 F.4th 49 (D.C. Cir. 2021) (Tatel, J.)
Jud. Watch, Inc. v. DOJ, 20 F.4th 49 (D.C. Cir. 2021) (Tatel, J.)
Re: Request for attachments to four emails sent to and from former Acting Attorney General Sally Yates's DOJ email account on the same day that she issued her statement concerning Executive Order Number 13,769
Disposition: Reversing and remanding district court's grant of government's motion for summary judgment
- Litigation Considerations, Vaughn Index/Declaration & Exemption 5, Deliberative Process Privilege: The Court of Appeals for the District of Columbia Circuit holds that "[b]ecause DOJ has failed to satisfy its burden to demonstrate that the attachments are deliberative, [the court] reverse[s] the district court's grant of summary judgment." First, the court finds that "[i]n this case, the attachments qualify as predecisional because, according to [the government's] declarations, they 'precede the finalization and transmission,' . . . of 'the final decision[, which] was . . . Yates' letter on January 30, 2017' . . . ." Second, the court finds that "[t]he third [defendant] declaration tells us that disclosing the attachments would 'reveal the drafters' evolving thought-processes' as well as 'ideas and alternatives considered but ultimately rejected.'" "But it never explains why." "It tells us nothing about what '"deliberative process is involved,"' that is, what procedure DOJ followed to finalize Acting Attorney General Yates's statement." "And it tells us nothing about the 'nature of the decisionmaking authority vested in the officer or person issuing the disputed document,' or the 'relative positions in the agency's chain of command occupied by the document's author and recipient.'" "It never even identifies who prepared the attachments or to whom the attachments were addressed." "[I]n those cases where [the court] found that the withheld material was deliberative, [the court] knew the 'who,' i.e., the roles of the document drafters and recipients and their places in the chain of command; the 'what,' i.e., the nature of the withheld content; the 'where,' i.e., the stage within the broader deliberative process in which the withheld material operates; and the 'how,' i.e., the way in which the withheld material facilitated agency deliberation." "Because the district court chose to rely on the government's declarations, and because [the court] expect[s] the attachments are relatively brief, [the court] remand[s] with instructions to review the attachments in camera and determine, consistent with the principles set forth herein, whether they qualify as deliberative."