Leopold v. Office of the Dir. of Nat'l Intelligence, No. 16-2517, 2020 WL 805380 (D.D.C. Feb. 18, 2020) (Kollar-Kotelly, J.)

Leopold v. Office of the Dir. of Nat'l Intelligence, No. 16-2517, 2020 WL 805380 (D.D.C. Feb. 18, 2020) (Kollar-Kotelly, J.)

Re:  Request for records concerning Russian interference in 2016 United States presidential election

Disposition:  Granting defendants' motion for summary judgment; denying plaintiffs' cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  Regarding ODNI, "the Court concludes that the withheld information falls under the deliberative process privilege of FOIA Exemption 5 and was properly withheld."  First, as a general rule, the court finds that "[g]overnmental decisions and policies can include the formulation of an agency's statements to the public and other outside entities."  The court "agrees with the weight of authority from district courts within this Circuit."  "As long as communications are pre-decisional and deliberative, internal agency communications about public statements can be protected by the deliberative process privilege."  "This conclusion complies with the purpose of the deliberative process privilege which is to encourage 'honest and frank communication within the agency' unhampered by fear of public disclosure."  Second, regarding the specific withholdings in this case, the court finds that records discussing how to respond to certain letters, voicemails and press inquiries, communications concerning public statements, and draft responses to congressional inquiries and draft oral remarks on that topic are all predecisional and deliberative. 
  
  Regarding the CIA, "[t]he Court finds that [the withheld] documents are pre-decisional because they reflect 'information at interim stages.'"  "The documents contain issues and questions that agency personnel anticipated might be raised with higher-level officials in the CIA."  "The documents also include recommendations as to how those higher-level officials might respond to such issues and questions were they to be raised."  "Additionally, the Court agrees with Defendant CIA's assertion that the disclosure of these documents risks chilling the ability of CIA personnel to provide higher-level officials, particularly the Director of the CIA, with candid advice on the making of public statements."
  
  Regarding the Department of State's withholding of document which "contain 'proposed talking points, anticipated questions, and proposed answers to be used by press staff or other principals speaking on behalf of the Department discussing important policy issues with the public or with foreign officials[,]'" "[t]he Court finds that these documents are pre-decisional because they were prepared and shared prior to the occurrence of a press briefing or any other official communication which would represent a final decision on Defendant State's official position on the subject."  "The proposed talking points were not required to be used in the form in which they were written."  "And, the officials to whom they were provided could choose not to use them at all."  "These documents are also deliberative because they represent the internal agency process by which the State Department crafts its statements to third parties."  "The proposed talking points were crafted 'by lower-level subject matter experts for more senior official's preparation and potential use.'"  "Moreover, the Court finds that Defendant State's withholdings further the purposes of the deliberative process privilege by promoting full and frank sharing of ideas among agency personnel."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Having reviewed the declarations by representatives of Defendants ODNI, CIA, and State, the Court concludes that all reasonably segregable, non-exempt information was released to Plaintiffs."  "Any non-exempt information contained in the withheld information is 'inextricably intertwined with exempt portions.'"