Nat’l Pub. Radio, Inc. v. DHS, No. 20-2468, 2022 WL 4534730 (D.D.C. Sept. 28, 2022) (Lamberth, J.)

Nat’l Pub. Radio, Inc. v. DHS, No. 20-2468, 2022 WL 4534730 (D.D.C. Sept. 28, 2022) (Lamberth, J.)

Re:  Request for records concerning detention of migrants at southern border

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

• Exemption 6:  The court relates that “DHS cited both FOIA Exemption 5 and Exemption 6 to justify withholding information responsive to [plaintiff’s] FOIA request in this case.”  “At this stage, [plaintiff] only challenges the Exemption 5 withholdings, not the Exemption 6 withholdings.”
   
• Exemption 5, Deliberative Process Privilege:  The court holds that “DHS may not withhold any of the responsive information at issue under FOIA Exemption 5.”  The court finds that “[a]lthough DHS has met its burden of demonstrating that all of the withheld information is predecisional, much of that information is too factual to be deliberative.”  The court relates that “DHS argues that all of the information withheld is predecisional because it was prepared to help [DHS’s Office of Civil Rights and Civil Liberties (“CRCL”)] advise the Department on the civil rights and civil liberties implications of the conditions at detention centers and what, if any, steps to take in response.”  “DHS’s position is that CRCL-retained experts tour the detention facilities and share their findings and recommendations to help inform CRCL’s recommendation to the Department as to whether conditions at those facilities warrant any action.”  “That explanation is reasonably specific, logical, and uncontroverted by other evidence in the record or by evidence of bad faith, which is all FOIA requires of an agency at the summary judgment stage.”  “[Plaintiff] argues that at least some of the withheld information – it is not clear how much – cannot be predecisional ‘[b]ecause DHS has not identified what decision resulted from each of the responsive reports.’”  “But that argument misreads Circuit precedent.”  “[A]s the Supreme Court has reasoned, it makes little sense for the privilege to turn on the identification of a specific decision, because ‘[a]gencies are, and properly should be, engaged in a continuing process of examining their policies,’ and that ‘process will generate memoranda containing recommendations which do not ripen into agency decisions.’”  Also, the court finds that “[plaintiff] does not identify any specific advice or recommendations in the Exemption 5 withholdings that later became DHS’s position.”
  
  Turning to the deliberative prong of the analysis, the court relates that “DHS argues that all of the information it withheld under Exemption 5 is deliberative because it ‘contain[s] unverified observations of first impression, expert analyses of facts and information gathering during the course of the expert’s investigation of the facility, and the uninhibited opinions and recommendations of [CRCL’s] expert consultant intended for evaluation and review by the Office.’”  The court finds that “DHS’s argument about ‘unverified observations of first impression,’ while creative, finds no support in extant FOIA jurisprudence.”  “And considering DHS’s position as a matter of first impression, this Court will not be the first to endorse it.”  “That position stands in significant tension with Circuit precedent.”  “The Circuit has recognized the ‘exercise of discretion and judgment calls’ principle only as an exception to the general rule that ‘[p]urely factual material usually cannot be withheld under Exemption 5.’”  “If that exception can apply both to the culling of an existing collection of facts and the work of building that collection of facts, then it threatens to swallow the rule.”  “[The] Court declines to so expand the exception.”  “With these principles in mind, much of what DHS withheld pursuant to Exemption 5 is just the sort of purely factual information that ordinarily is not deliberative.”  “Because ‘unverified observations of first impression’ are not deliberative in nature, the deliberative process privilege applies only to the withholdings in this case that represent the experts’ analysis, opinions, or recommendations.”
   
• Exemption 5, Foreseeable Harm and Other Considerations:  The court holds that “DHS has not made [the required foreseeable harm] showing with respect to any of the Exemption 5 withholdings.”  The court finds that “DHS relies primarily on just the sort of boilerplate justifications that the Circuit has held insufficient to establish reasonably foreseeable harm.”  The court relates that defendant stated that “‘[c]ourt-ordered disclosure of the information would severely undermine the Department’s ability to efficiently and effectively investigate allegations of civil rights or civil liberties violations, and for its investigators and decision-makers at various points of the decisional process . . . to offer uninhibited opinions and recommendations on the matters at issue.’”  “‘Without the continued assurance of confidentiality, CRCL’s expert consultants would not provide the Department with the meaningful information it needs to properly investigate civil rights complaints.’”  “‘Maintaining the confidentiality of these types of pre-decisional and deliberative communications is critical for the Department to carry out its mission.’”  The court notes that “[e]very single entry in the Vaughn index repeats this justification in no more specific form.”  The court finds that “[n]owhere does DHS explain why disclosure of these specific types of reports would chill deliberations more than that of any generic document to which the deliberative process privilege applies.”  “The fatal flaw in DHS’s first ‘reasonably foreseeable’ justification is that it is essentially a restatement of ‘the generic rationale for the deliberative process privilege itself.’”  “[T]he Court must give meaning to the requirement, enacted by Congress after decades of evolving FOIA jurisprudence, that the agency articulate why this disclosure would be particularly harmful.”
  
  The court relates that “DHS also argues that ‘the Department’s evidence shows that it is reasonably foreseeable that release of the experts’ preliminary findings and recommendations would cause public confusion.’”  The court finds that “DHS’s second justification fails for similar reasons to the first.”  “Courts have recognized guarding against public confusion as one of the interests protected by the deliberative process privilege.”  “However, the FOIA Improvement Act does not allow agencies to show reasonably foreseeable harm simply by making boilerplate recitations about the potential for confusion to result from preliminary recommendations or findings.”  “DHS does not give a single specific explanation as to why disclosure of any particular report would cause public confusion.”