Judicial Watch, Inc. v. DOJ, No. 17-0832, 2019 WL 4644029 (D.D.C. Sept. 24, 2019) (Kollar-Kotelly, J.)

Judicial Watch, Inc. v. DOJ, No. 17-0832, 2019 WL 4644029 (D.D.C. Sept. 24, 2019) (Kollar-Kotelly, J.)

Re:  Request for emails sent from or received by Acting Attorney General Sally Yates from January 21, 2017 through January 31, 2017

Disposition:  Denying defendant's motion for summary judgment; holding in abeyance plaintiff's cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  "As the Court concludes that DOJ has not met its burden with respect to the requirements of the FOIA Improvement Act of 2016, the Court does not reach the question of whether any withholdings were ultimately proper under FOIA Exemption 5."  "[T]he Court concludes that the FOIA Improvement Act imposes a meaningful and independent burden on agencies to detail the specific reasonably foreseeable harms that would result from disclosure of certain documents or categories of documents."  The court finds that "DOJ provides nearly identical boilerplate statements regarding the harms that will result throughout its first affidavit and Vaughn index."  The court finds that "these generic and nebulous articulations of harm are insufficient."  "The agency has failed to identify specific harms to the relevant protected interests that it can reasonably foresee would actually ensue from disclosure of the withheld materials.  "Furthermore, it has not connected the harms in any 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."
  
  Additionally, overall, the court finds that "the information provided in the declaration and Vaughn index are too vague for the Court to determine whether [certain information] [has] been properly withheld under the deliberative process privilege."
   
• Exemption 5, Attorney Work-Product Privilege:  Regarding a withheld "chart . . . [that] has numerous entries that appear to pertain to different components," the court finds that "an issue does arise because DOJ has treated the entire chart as a whole in providing information relevant to this privilege, but treated each entry individually in determining whether to invoke the privilege over that entry."  "Consequently, it has failed to provide information as to each invocation – each entry, or even each category of entries within the chart."  "Because each entry differs in its subject matter and DOJ invokes the privilege as to each withheld entry, DOJ must provide enough information for the Court to evaluate whether each of the withheld summaries was appropriately withheld as attorney work product."  "While DOJ has given a broad description of the chart, explained its general origins, and identified that DOJ attorneys are responsible, . . . it has not provided sufficient specific information about the individual entries, their origins, and their connections to ongoing or anticipated litigation for the Court to determine whether the withheld portions are protected by the attorney work product privilege."  "The Court therefore cannot determine whether the withheld entries themselves, rather than the chart as a whole, 'relate to the conduct of either on-going or prospective trials' or 'include factual information, mental impressions, conclusions, opinions, legal theories or legal strategies relevant to any on-going or prospective trial.'"