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Leopold v. DIA, No. 19-2798, 2024 WL 4647641 (D.D.C. Oct. 31, 2024) (Contreras, J.)

Date

Leopold v. DIA, No. 19-2798, 2024 WL 4647641 (D.D.C. Oct. 31, 2024) (Contreras, J.)

Re: Request for records concerning Lieutenant General Michael Flynn, Director of DIA from July 2012 until August 2014

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

  • Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations: The court relates that at issue is “‘[a]n email between ODNI and senior IC leaders regarding [the then Deputy Director of National Intelligence’s] upcoming visit to Germany, and recommendations on what he should do in light of recent events, after he sets forth the specifics and purpose of the itinerary.’”  “The Court holds that the predecisional requirement was met by DIA because the deliberations included in the redacted documents occurred before DIA made its decision about the travel.”  “The Court also finds that the deliberative requirement has been met because it is clear that the redacted information is ‘part of the agency give-and-take’ of the decision that was ultimately made with respect to the upcoming travel.” However, “the Court finds that Defendant does not adequately demonstrate how releasing information about a possible visit to a foreign country would cause foreseeable harm to DIA.”  “Specifically, it has not sufficiently explained how disclosing the redacted lines from the Director of National Intelligence’s email would impact the deliberations of the upcoming travel.”  “DIA’s justification of its redactions under the deliberative process privilege, that releasing the redacted records could disrupt the efficient daily operations of the ODNI and its employees might exercise greater caution in their discussions related to official travel decisions . . . is ‘[an] assertion of harm [that] . . . is wholly generalized and conclusory.’”  “There is currently nothing in the record of this action that would support a finding that release of the lines in these emails would chill ODNI employees from being candid in their deliberations regarding travel decisions in the future.” “DIA bears the burden of explaining, with particularity, why disclosure would ‘actually impede’ future deliberations.” “However, the Court finds that given the issues involved, communications between high-level officials in the intelligence community discussing an issue that could impact foreign relations with one of this country’s closest allies, it is hesitant to order the documents produced.”  “Accordingly, the Court holds that DIA has another opportunity to justify its withholding in a renewed motion for summary judgment within thirty days of this opinion and order that also includes submission of the document for in camera review.”
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Litigation Considerations, Foreseeable Harm Showing
Updated December 12, 2024