Jud. Watch, Inc. v. DOJ, No. 19-800, 2020 WL 5798442 (D.D.C. Sept. 29, 2020) (Chutkan, J.)

Jud. Watch, Inc. v. DOJ, No. 19-800, 2020 WL 5798442 (D.D.C. Sept. 29, 2020) (Chutkan, J.)

Re:  Request for certain talking points records concerning former Secretary of State Hillary Clinton's alleged use of unclassified private email servers

Disposition:  Denying defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 5, Foreseeable Harm:  "[T]he court will deny summary judgment for DOJ regarding Exemption 5."  "The court will, however, permit DOJ to supplement the record regarding foreseeable harm."  The court relates that "[plaintiff] does not contest that the deliberative process privilege protects the documents; instead, it argues that DOJ has not shown that releasing the documents would harm the agency's deliberative process."  "It is not enough for an agency to speculate that harm could result from disclosure.  It must 'connect[ ] the harms' in a 'meaningful way to the information withheld, such as by providing context or insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.'"  The court finds that "DOJ has failed to provide more than speculation that disclosure of the drafts would cause public confusion."  "Because these documents have at least some markings that indicate they are drafts, it is unlikely that they would be mistaken for final agency policy."  "DOJ further contends that disclosing drafts that may contain factually inaccurate information would cause public confusion."  "However, DOJ admits that it has not fully vetted these drafts for factual accuracy."  "Until it has done so, and can assert to this court that the documents do, in fact, contain inaccurate information, DOJ's assertions are merely speculative."  "Moreover, the boilerplate statements in DOJ's affidavits and revised Vaughn index do not support DOJ's argument that public confusion is indeed 'reasonably foreseeable,' and not merely speculative."  "DOJ likewise fails to meaningfully connect the harm of discouraging frank dialogue to the information withheld, relying on boilerplate statements to justify its withholdings."  "For example, DOJ declares that '[t]he harm here would be a chilling effect on agency employees' willingness to share such drafts if they knew their unrefined ideas would be subject to public disclosure,' . . . but fails to draw a link between the stated harm and the specific drafts withheld."  Overall, the court finds that "DOJ has not provided the . . . link between the alleged harm and the information in the withheld material . . . ."  "Accordingly, DOJ has failed to show that it could 'reasonably foresee' that harm would result from disclosure."
   
• Litigation Considerations, In Camera Inspection:  "[T]he court disagrees" with "[plaintiff's] conten[tion] that the insufficiency of DOJ's affidavits, the limited number of pages at issue, and the strong public interest in disclosure tilt the balance in favor of in camera review."  The court finds that "[w]hile DOJ's declarations and Vaughn indices are currently insufficient to justify withholding documents under Exemption 5, it should be given the opportunity to provide additional detail, taking into the account the deficiencies identified in this opinion."