Jud. Watch, Inc. v. U.S. Dep't of State, No. 20-124, 2021 WL 3633611 (D.D.C. Aug. 17, 2021) (Cooper, J.)

Jud. Watch, Inc. v. U.S. Dep't of State, No. 20-124, 2021 WL 3633611 (D.D.C. Aug. 17, 2021) (Cooper, J.)

Re:  Request for records concerning use of CrowdTangle, social media analytics program capable of tracking users' activity across multiple platforms

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

• Exemption 5, Deliberative Process Privilege & Exemption 5, Other Considerations:  Regarding "the eight individual documents in question, the Court will uphold each assertion of the deliberative process privilege."  "It is therefore unnecessary to reach the State Department's alternative argument that the attorney-client privilege applies to some of the withheld information."
  
  First, the court relates that "[plaintiff] challenges broadly . . . the government's assertions of the deliberative process privilege in this case on the ground that the documents at issue relate to '[a] nakedly political effort to monitor a group of U.S. citizens and journalists investigating a matter that could cause potential embarrassment to certain government officials,' not 'a legitimate agency policy.'"  "However, [the court finds that] [plaintiff] cites no authority – and the Court is aware of none – for the proposition that predecisional and deliberative documents lose their privileged status if the conduct discussed in those documents is somehow illegitimate or unsavory."  "On the contrary, the confidentiality of internal agency deliberations may be most important when the agency is considering actions that would be susceptible to intense criticism."  "Knowing that their comments are privileged, agency personnel may be more willing to point out the faults of such proposals before the agency's decision is made."
  
  Regarding emails "contain[ing] officials' discussion of the impact of legal provisions on the State Department's 'potential use of particular social media analytics platforms, including CrowdTangle,'" the court finds that this material was "integral to the 'give-and-take' preceding the State Department's decision on its potential use of these platforms" and "falls squarely within the deliberative process privilege."  Additionally, the court finds that "[t]he State Department has also shown that disclosure of both documents would cause reasonably foreseeable harm."  "The revised Vaughn index explains that disclosure of the withheld parts of Documents 1 and 2 would 'discourag[e] Department officials from reaching out to their legal counsel to discuss issues related to the Department's functions while also deterring Department attorneys from candidly discussing . . . their views on sensitive legal issues.'"  "This explanation links the agency's prediction of harm to the specific category of deliberative material at issue – namely, discussions between State Department attorneys and non-attorneys about policies that may raise 'sensitive legal issues.'"
  
  Regarding another batch of emails as well as "a draft issue paper, which assesses the impact of the Privacy Act on the State Department's potential use of analytics platforms and provides 'additional details about the Department's relationship with CrowdTangle,'" "[t]he Court does not doubt, nor does [plaintiff] genuinely dispute, that the first two emails in Document 3 are predecisional and deliberative."  Regarding foreseeable harm, the court finds that defendant provides "'a focused and concrete demonstration of why disclosure of the particular type of material at issue' – internal discussions of sensitive legal issues – 'will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward.'"  "The Court reaches the same conclusion on the draft issue paper."  "[T]he record shows that the draft issue paper falls within the privilege."  "The draft paper is predecisional because it 'predates any final version of this guidance later prepared by Department officials.'"  "It is also deliberative in nature because in preparing the issue paper, the State Department was not merely describing 'already-made and in-place policy choices,' . . . but making forward-looking judgments about the legal framework that should guide the development of the agency's use of analytics technology."  "The State Department also asserts that disclosure of the draft issue paper would cause foreseeable harm by leading officials to 'believe that every edit or comment they propose in a draft document may be released to the public, thus curbing the candid exchange of ideas between Department officials and curtailing creativity in the compilation and explanation of Department policy.'"  "This explanation describes the specific harm foreseen and connects it to the draft document at issue."
  
  Regarding another batch of Ukraine-focused emails, the court finds that "[t]he record makes clear that these emails, if released, would expose 'the give-and-take of the consultative process' within the State Department."  "The Court thus has no difficulty concluding that the withheld parts of these emails are predecisional and deliberative."  "The State Department also avers that full disclosure of [these documents] 'would foreseeably harm the deliberative processes used by Department officials when deciding what techniques and procedures they can and should use to track developing news stories, by discouraging officials from even engaging in those conversations' for fear of public exposure."  "This statement 'directly articulate[s]' the 'link between the specified harm' – i.e., potential disengagement from internal conversations about tracking news stories – 'and the specific information contained in the material withheld.'"
  
  Next, the court considers "an email exchange between the Deputy Director of [the Bureau of European and Eurasian Affairs'] Public Diplomacy office and a Press Attaché, which contained additional information on the Kyiv desk's request for monitoring assistance and conflicting views on the merits of involving U.S.-based officers in the monitoring efforts."  The court finds that "[b]ecause the redacted parts of these emails contain personal views, recommendations, and debates on potential State Department policies, the deliberative process privilege applies to them."  "Whether the revised Vaughn index satisfies the foreseeable-harm requirement as to [this email exchange] is a much closer call."  "The agency states that disclosure of [this email exchange] in unredacted form would lead its personnel to 'believe that every concern or recommendation they discuss with colleagues may be released to the public, thus curbing the candid exchange of ideas between Department officials and curtailing creativity in the formulation of Department policy.'"  "On one hand, this language is largely a recitation of 'the generic rationale for the deliberative process privilege itself' and would apply equally to many other withholdings."  "On the other hand, it does not require much imagination to surmise why the State Department would foresee harm from the disclosure of the specific information at issue."  The court finds that "the 'context and purpose' of [the email exchange] would likely be sufficient to 'make the foreseeability of harm manifest,' even without a detailed written description of the foreseeable harm."  "Nevertheless, given the generic wording of the State Department's foreseeable-harm statement and the scarcity of controlling precedent on point, the Court exercised its discretion to review [this email exchange] in camera to help determine whether releasing the unredacted document would cause foreseeable harm."  "Having examined the document in its redacted and unredacted forms, the Court is confident that the State Department's redactions were justified."
  
  Finally, regarding portions of an "email chain in which agency personnel discussed a CrowdTangle analytics report," which "include recommendations from State Department officials," the court finds that "there is no genuine dispute that the redacted material in this email chain is predecisional and deliberative."  "Based on this review, the Court will sustain the State Department's withholdings."  "Without delving into any protected details, the Court notes that the second and fifth emails are only lightly redacted."  "These redactions are carefully tailored to conceal substantive, forward-looking recommendations and suggestions about the State Department’s use of CrowdTangle or similar tools."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court finds that "the record contains an unrebutted attestation that the State Department 'conducted a line-by-line review of all the documents from which information has been withheld and has released all reasonably segregable, non-exempt information,' excluding information that would be meaningless without the surrounding exempt material."  "This evidence satisfies the State Department's burden as to segregability, especially when combined with the fact that the agency applied selective redactions instead of blanket withholdings."
   
• Litigation Considerations, In Camera Inspection:  "[W]here the Court can readily conclude based on the State Department's affidavits that a document was properly redacted, the Court will uphold those redactions without reviewing the documents in camera."  "However, . . . the Court has inspected two documents in camera to aid its analysis."