Jud. Watch, Inc. v. DOJ, No. 19-800, 2023 WL 3055426 (D.D.C. Apr. 24, 2023) (Chutkan, J,)

Jud. Watch, Inc. v. DOJ, No. 19-800, 2023 WL 3055426 (D.D.C. Apr. 24, 2023) (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:  Granting defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Exemption 5, Foreseeable Harm and Other Considerations:  The court relates that “Plaintiffs seek all final and draft copies of internal talking points prepared by the Federal Bureau of Investigation (FBI) for its Executive Assistant Directors (EADs) and Supervisory Agents in Charge (SACs) related to the FBI’s investigation of former Secretary of State Hillary Clinton’s alleged use of unclassified private email servers.”  “Defendants withheld 70 responsive pages, and Plaintiff challenges the withholding of 47 of those pages.”  “In its prior decision, the court held that FOIA’s Exemption 5 – the deliberative process privilege – applied to the 47 pages at issue.”  “However, the court concluded that Defendant had failed to satisfy its ‘burden to establish harms flowing from disclosure.’”  The court finds that “Defendant’s supplemental materials satisfy its burden to connect the disclosure of the 47 draft pages at issue with the harm of discouraging frank dialogue within the agency.”  “That is enough to justify withholding the documents under FOIA’s Exemption 5.”  “Defendant has met its burden here by articulating the connection between the information at issue – along with its place in the particular processes involved – and the chilling effect of disclosure.”  “Defendant’s latest declaration specifically ‘identifies the content of the withheld documents,’ . . . :  ‘redlines, comments, and suggestions’ with ‘preliminary assessments and recommendations, including wording, structure, presentation, and potential impact to the anticipated audience,’ . . . .”  “The discussion in those edits is ‘substantive,’ with ‘significant debate between the officials that drafted and reviewed it’ as they attempted to ‘clarify[ ] the facts and message’ in the talking points.”  “The declaration also situates the exchange of that information within the FBI’s process for deciding the talking points’ content and framing.”  “A variety of employees ‘drafted, analyzed, reviewed, and evaluated each draft, providing recommendations and opinions,’ and ‘interacting with the highest levels of FBI leadership, executives who are responsible for much of the decision-making and creation of policy within the FBI.’”  “The declaration explains that the iterative process of drafting the talking points required the participants to ‘provide unrestrained feedback, speculate if necessary, and ask questions regarding the accuracy of certain facts while anticipating potential criticisms.’”  “‘This is true across the board but would be particularly damaging in any sensitive, controversial, or high-profile case where the need for complete candor is critical.’”  “The ‘high[-]profile nature of the investigation at issue and the intense public scrutiny’ of these particular talking points made ‘a willingness to ask tough questions and test assumptions’ during the editing process especially important.”  “These details explain Defendant’s conclusion – which it asserted in previous filings but with less support – that disclosure of the documents would impair its internal deliberative processes.”  “The nature of the ‘raw editorial comments’ at issue, in the context of an iterative drafting process for a high-profile matter, demonstrates that their disclosure [‘]could reasonably be expected to foster an environment where employees across the FBI would fear providing candid opinions, advice, and comments on preliminary drafts of documents that might similarly be made public and therefore would hesitate to commit such thoughts to writing or refrain from frankly discussing sensitive, difficult, or controversial FBI matters internally.[’]”  “In turn, ‘[t]his would deprive FBI decisionmakers, including executives at the highest levels, of the open and honest advice of FBI officials and employees necessary to make well-informed and considered decisions, ultimately harming the FBI and hampering it in performing its mission.’”  “Thus, Defendant has shown that withholding the 47 draft pages is necessary to protect ‘the give-and-take of the consultative process’ that produced those drafts, along with other similar processes at the FBI.”  “That is sufficient for invoking FOIA’s Exemption 5.”
  
  “Plaintiff’s counterarguments are unpersuasive.”  “First, it contends that ‘disclosure of the drafts and comments does no harm to the analysis and accuracy of the final talking points, which have already been finalized and released.’”  “Although that statement is true, it misses the point – which is that disclosure of the records from this drafting process could chill frank discussion in similar future situations.”  “Second, Plaintiff seizes on Defendant’s statement that the chilling effect is ‘highly likely,’ arguing that ‘highly likely is not reasonably foreseeable’ and is ‘too speculative’ to meet the . . . standard.”  “But Plaintiff cites no authority for that proposition, and the court disagrees with it.”  “Defendant concluded the chilling effect was highly likely because it had reasons to foresee that outcome, which it has now detailed with sufficient clarity to justify withholding the records at issue.”
   
• Litigation Considerations, In Camera Inspection:  “The court also rejects Plaintiff’s request for in camera review of the withheld documents.”  “Defendant has met its burden for invoking Exemption 5, and the court need not conduct additional review.”