Judicial Watch, Inc. v. Dep't of State, No. 14-1511, 2017 WL 1078544 (D.D.C. Mar. 20, 2017) (Jackson, J.)

Judicial Watch, Inc. v. Dep't of State, No. 14-1511, 2017 WL 1078544 (D.D.C. Mar. 20, 2017) (Jackson, J.)

Re: Request for records created in response to September 11, 2012 attack on United States Consulate in Benghazi, Libya

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege: The court relates that, "[w]ith the exception of two specific documents, plaintiff does not challenge the State Department's characterization of the withheld documents or information as predecisional and deliberative." "Instead, plaintiff asks the Court to reject defendant's assertion of the deliberative process privilege as to all of the documents withheld under Exemption 5 because plaintiff contends the government has engaged in misconduct." "Specifically, plaintiff argues that the 'State Department and Obama Administration clearly misled the public about the Benghazi attack,' and that 'there is a clear connection between the government misconduct and the records and material at issue.'" The court finds that "plaintiff has not pointed the Court to any case in which a court in this district has ordered that deliberative materials be disclosed on those grounds." "[T]he Court finds that the only applicable Circuit authority militates against recognizing a government misconduct exception in a FOIA case[.]"
  
  However, "[t]he Court finds that the two records, even if just barely predecisional, are not deliberative." "Defendant has pointed to very little to support its characterization of these two records as deliberative, and the Court's in camera review of the documents reveals that they do not fall within that category." The court finds that "[t]he case law does not support defendant's argument that the mere selection of facts to be incorporated in a summary is enough in and of itself to satisfy the requirement that it be deliberative." "[H]ere, that element of sifting through and winnowing down a voluminous record with an eye towards what a decision-maker would find significant, . . . is not present." "Moreover, it cannot be said that disclosure of these records would 'so expose the deliberative process' that the exemption should apply." "The records do not emphasize, comment upon, or characterize events or facts; they simply summarize telephone calls and pass information on to State Department officials, without any indication that the information should prompt further action or bear upon a decision under review."