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Leopold v. DOJ, No. 20-03651, 2024 WL 5159099 (D.D.C. Dec. 18, 2024) (McFadden, J.)

Date

Leopold v. DOJ, No. 20-03651, 2024 WL 5159099 (D.D.C. Dec. 18, 2024) (McFadden, J.)

Re:  Request for records concerning 2020 presidential election

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiffs’ cross-motion for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The court relates that “[f]irst up is an Office of Legislative Affairs (‘OLA’) document titled ‘OLA 2020 ELECTION TRIAGE’ (‘Triage Document’).”  “It ‘outlines potential election day issues” and lists step-by-step triage instructions ‘for OLA staff’ to follow when handling inquiries from Members of Congress on election day.”  “The document includes a section with hypothetical questions and answers, as well as ‘proposed or anticipated tasks expected to be performed by OLA staff.’”  “Senior OLA officials wrote the Triage Document, including the ‘OLA Chief of Staff, two OLA Senior Counsel, and an OLA Counsel, with the assistance of an OLA Legislative Assistant.’”  “After preparing it, the senior officials sent it to the head of OLA, describing it as the agency’s ‘primary election materials.’”  “OLA did not end up receiving any congressional inquiries on election day, so the Department never used the Triage Document.”  “The Department released a heavily redacted version of the document to [plaintiff].”  “It justified most of the redactions under the deliberative process privilege encapsulated in FOIA Exemption 5.”  “In explaining its rationale, the Department frames the Triage Document as a set of predecisional and deliberative ‘talking points.’”  “Having reviewed the Triage Document in camera, . . . the Court finds it is neither predecisional nor deliberative.”  “Rather, it is a final set of instructions promulgated by office leadership for staff to follow when responding to congressional inquiries.” “So the Department must release the portions of the Triage Document it withheld solely under Exemption 5.” “Talking points sent ‘from a subordinate to a superior official [are] more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining . . . a decision already made.’”  “When compiled for a senior official, talking points are usually predecisional because the official ‘may elect to use all, some, or none of the talking points prepared for her.’”  “Yet the same is not necessarily true of talking points created by senior officials for use by subordinates because subordinates lack ‘authority to depart from their content.’”  “The Department maintains that Exemption 5 covers the Triage Document because:  (1) it includes suggested answers to potential questions that ‘reflect[ ] the deliberative process of OLA staff about how best to respond to hypothetical inquiries from Congress’; and (2) its creation preceded the agency’s final decision – meaning the ‘real time’ response from OLA staff to ‘actual inquir[i]es from Congress.’”  “Take these arguments in turn.”  “First, the Triage Document’s inclusion of hypothetical questions and answers does not automatically make it predecisional or deliberative.”  “Rather, the conjectured back-and-forth was part of a finalized, top-down directive to help OLA staff field questions on election day.” “The Department does little to counter this characterization.”  “It does not assert that OLA staff had discretion to disregard the Triage Document.” “Instead, it argues that the document was deliberative because it contains what the Department characterizes as ‘proposed or suggested’ answers rather than a fixed script.”  “The Court sees it differently.”  “What the Department frames as ‘proposed or suggested’ answers read very much like a fixed script with no indication they are mere suggestions.”  “Besides, allowing OLA staff some linguistic discretion rather than mandating verbatim recitation is hardly the same as giving OLA staff authority to disregard the Triage Document’s content.”  “This lack of discretion by OLA staff also undermines the Department’s second point.” “The Department says the relevant final decision was the actual responses to inquiries, not the creation of the Triage Document.”  “That may often be true when subordinates prepare talking points for senior officials.”  “But it does not follow that the same is true when senior officials send nondiscretionary instructions – including talking points – to others.”  “In any event, disclosing the Department’s redactions risks no foreseeable harm to the agency.”  “The Department cautions that release would dampen its ‘robust internal’ deliberations and impede its ability to craft ‘accurate, informed, and thoroughly vetted’ responses to congressional inquiries.”  “Yet precisely how remains a mystery.”  “The Department withheld its draft iterations and revisions to the Triage Document, so its internal deliberations remain shielded.”  “And the final version contains pre-vetted information the Department considered suitable for release to Members of Congress.” “The Department does not explain how exposing these previously cleared-for-release responses would now cause harm.”
     
  • Exemption 5, Deliberative Process Privilege; Exemption 7(E):  “Next is an email from . . . the Principal Deputy Assistant Attorney General in the Department’s Civil Rights Division (‘CRT’) to members of CRT senior leadership.”  “It includes [the Principal Deputy Assistant Attorney General’s] ‘discussion and analysis’ of ‘potential remedies to alleged violations of . . . the Voting Rights Act of 1965 [ ] in the 2020 presidential election.’”  “Part of the email describes ‘a narrative decision tree [with] the steps and their prerequisites justifying the deployment of election monitors to polling places.’”  “It also lays out CRT’s recommendation on whether the agency should deploy federal observers.”  “The Department redacted the entire body of the email . . . .”  The court finds that “[t]he email does more than just recite or ‘explain an existing policy.’”  “It contains [an] analysis and recommendations to senior leadership on potential agency enforcement actions.”  “True, this implicates existing policy.”  “But the Department confirms that discussion of these legal authorities and factors is bundled into [the] overall recommendation.” “It is not an anodyne explanation of policy.”  “So [the] discussion of the pertinent law is ‘a direct part of the deliberative process.’”  “This . . . overpowers [plaintiff’s] insistence that the legal background is merely factual material.”  “Even if the legal authorities and factors are purely factual matters, the Department concluded after a line-by-line review that the withheld material is inherently intertwined with ‘the deliberative analysis and cannot be released without revealing the agency’s deliberative process.’”

    “But that does not end the inquiry.” “[Plaintiff] also challenges the Department’s use of Exemption 7(E) and argues that:  (1) ‘factors’ and ‘levels of proof to establish’ a Voting Rights Act violation do not qualify as law enforcement ‘techniques and procedures’; and (2) the Department has not shown that release would cause harm.”  “To start, the Department has shown that Exemption 7(E) applies.”  “[The] discussion of the factors and level of proof is part of ‘a narrative decision tree [that lists] the steps and their prerequisites justifying the deployment of election monitors to polling places.’”  “The factors and levels of proof are part of the process CRT implements when making the decision to initiate a law enforcement action.” “This ‘decision matrix’ ‘is not publicly known,’ . . . so releasing it would reveal the procedure – the algorithm – that CRT employs when triggering enforcement.”  “[Plaintiff] urges the Court to limit the definition of ‘techniques’ and ‘procedures’ to concrete ‘actions.’”  “And it argues that ‘laws are not actions.’”  “But [plaintiff] does not identify any cases that adopt this definition.”  “[The] Court also declines [plaintiff’s] invitation to read techniques and procedures so narrowly.”  “Even if the Court did follow [plaintiff’s] definitional framework, the factors and legal authorities would still be exempt from disclosure because they are ‘inextricably intertwined with exempt portions’ of [the] analysis.”  “The Department has also shown that releasing this material would risk circumvention of the law.”  “As its supplemental declaration notes, ‘[m]any aspects of DOJ’s [Voting Rights Act] enforcement are assertively contested’ and there are ‘many opponents actively seeking ways to prevent the agency from enforcing’ the Act.” “Listing ‘those circumstances by which the very law enforcement technique discussed can be undone or be ineligible’ thus poses a threat of ‘undermining the underlying technique and process and risk[ing] circumvention of the law.’”  “These same concerns make it ‘reasonably foreseeable’ that disclosure ‘would . . . jeopardize the Department’s ability to implement’ its federal monitor program for elections by ‘expos[ing] significant portions of the sensitive law enforcement process.’”  “Revealing information on the non-public Voting Rights Act enforcement decision tree and the circumstances in which enforcement techniques ‘can be undone or be ineligible’ when opponents are ‘actively seeking ways to prevent,’ . . . agency enforcement would surely ‘reduce the effectiveness of such techniques.’” “In sum, the Department has met its burden by demonstrating that Exemption 7(E) applies to the withheld material and that release would cause foreseeable harm.”
     
  • Exemption 5, Deliberative Process Privilege:  The court relates that [the Principal Deputy Assistant Attorney General in the Department’s Civil Rights Division also] prepared a second document for “the Department’s Senior Leadership Offices” that analyzed “the factors that CRT considers when assessing compliance with the Voting Rights Act,” and gave “CRT’s opinion as to the adequacy of certain state list maintenance programs and rationale therefore.”  “To be sure, the Department has ‘the burden of establishing what deliberative process is involved, and the role played by the documents in . . . that process.’” “But the Department satisfied this burden with its declarations.”  “It identifies the relevant decision-making processes as ‘the adequacy of certain state list maintenance programs’ and whether Voting Rights Act enforcement actions were warranted.”  “More, the Department conducted a line-by-line review and concluded any factual material in [the] ‘analysis and propose[d] suggestions and recommendations’ is not reasonably segregable.”  “Other than reiterating that the material is factual, . . . [plaintiff] offers nothing to overcome the ‘presumption that [the Department] complied with [its] obligation’ to release reasonably segregable material.”  “The Department also established that releasing the material would cause foreseeable harm through its declarations.”  “[Plaintiff] does not contend otherwise.”

    “Finally, the parties spar over draft answers the Department of Homeland Security created in response to an inquiry from the congressional Homeland Security and Governmental Affairs Committee.”  “After drafting the answers, DHS sent them to the Department for feedback.”  “The Department offered comments and substantive feedback on the answers, though DHS never ended up sending its answers to Congress.”  “The Department used Exemption 5 to withhold parts of DHS’s draft answers and the Department’s feedback, claiming release would cause public confusion and chill interagency coordination.”  “[Plaintiff] does not dispute Exemption 5’s applicability and instead contends that the Department has not shown foreseeable harm.” “Consider first DHS’s draft answers.” “While the Department’s vague concern over public confusion is uncompelling, it persuasively explains how release will curb interagency review.”  “It says agencies will hesitate to collaborate if doing so increases the chances their drafts will be released to the public.”  “[Plaintiff] retorts that DHS would have created a draft whether or not the agency sent it out for review.”  “So, [plaintiff] reasons, interagency review is not harmed by releasing a draft that would have been created either way and that might theoretically be releasable through a FOIA request to DHS.”  “But ‘Exemption 5 does not distinguish between inter-agency and intra-agency memoranda.’”  “Because Exemption 5 protects documents sent between agencies as part of the deliberative process, any impediment to multi-agency review is ‘harm to an interest that the exemption protects.’”  “[Plaintiff] cannot seek a DHS document through a suit against another agency and then ask the Court to forget that this agency only has the document because of inter-agency review.”  “Forcing the Department to release a DHS draft sent for feedback would chill interagency review.”  “As for the Department’s feedback on the draft, the agency fears release ‘would harm with reasonable foreseeability the [the Department’s] predecisional, deliberative decisionmaking process.’”  “Specifically, it would hinder the agency’s ability ‘to engage in the interagency legislative review process without constraint’ by making its personnel ‘less inclined to share their thoughtful analysis and recommendations in response to interagency review’ requests.”  “The Court agrees and is unpersuaded by [plaintiff’s] assertion that the concern is conclusory and lacks support.”
  • Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: “The Court has also considered segregability.”  “Based on the Department’s declarations and briefing, the Court finds that it conducted a line-by-line review of each record and released all reasonably segregable portions.”  “The Department must release the parts of OLA’s Election Triage Document that it withheld solely under Exemption 5, but FOIA permits its other withholdings.”
Court Decision Topic(s)
District Court opinions
Exemption 5, Deliberative Process Privilege
Exemption 7(E)
Litigation Considerations, “Reasonably Segregable” Requirements
Updated January 21, 2025