Nat'l Pub. Radio, Inc. v. U.S. Int'l Dev. Fin. Corp., No. 20-08307, 2021 WL 5507215 (C.D. Cal. Nov. 24, 2021) (Wright, II, J.)

Nat'l Pub. Radio, Inc. v. U.S. Int6'l Dev. Fin. Corp., No. 20-08307, 2021 WL 5507215 (C.D. Cal. Nov. 24, 2021) (Wright, II, J.)

Re:  Request for records concerning International Development Finance Corporation ("DFC") announcing intent to loan $765 million to Eastman Kodak Company to support manufacturing ingredients for COVID-19 drugs

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

• Exemption 5, Deliberative Process Privilege:  The court relates that "the parties agree that only four document categories are at issue, and that the at-issue documents implicate only FOIA Exemption 5."  First, "[t]he Court finds that DFC does not meet its burden of showing the deliberative process privilege applies to the documents in Categories 1, 2, and 4."  The court relates that "Document Category 1 consists of drafts of the aforementioned op-ed the DFC published in the New York Post announcing its loan to Kodak."  "According to [defendant], administrative counsel in the Office of General Counsel of the DFC, these drafts 'are unsigned and unfinalized, and include editorial mark-ups, comments, redline revisions, and comments made by DFC and inter-agency employees reflective of the deliberative process.'"  "Document Category 2 consists of email correspondence about the New York Post op-ed. "  "[Defendant] indicates these emails are 'between interagency stakeholders engaged in deliberative discussions regarding development and editing of the draft op-ed documents' and are 'predecisional to the final op-ed.'"  "Document Category 4 consists of email correspondence discussing 'messaging, themes, and engagement with media' related to the loan."  "The subjects of these emails are (1) how to engage with the media and associated stakeholders about an upcoming press event; (2) which officials would speak at the upcoming event; (3) messaging, themes, and points to highlight in several upcoming media engagements regarding the Kodak announcement; and (4) whether and how to respond to press queries regarding the Defense Production Act's grant of loanmaking authority to DFC."  "The parties agree that the documents in Categories 1, 2, and 4 do not precede any substantive policy decision regarding any loan that DFC might have made in the future, and that rather, these documents relate entirely to how DFC would announce its decision about the Kodak loan to the public."  "Thus, the legal issue the parties' Motions ultimately raise is whether deliberations about how an agency will communicate an already-made policy decision to the public are protected by the deliberative process privilege."  The court finds that "[w]hether [it] follows Ninth Circuit precedent or resorts to 'first principles,' . . . the answer to this question is 'no.'"  "'[P]ost-decisional records fall outside the deliberative process privilege if they follow a final decision and are designed to explain a decision already made.'"  "Here, no one disputes that Categories 1, 2, and 4 are more in the character of documents that 'follow a final decision' (here, the decision to loan money to Kodak) 'and are designed to explain a decision already made' (here, in a New York Post op-ed) rather than 'documents prepared in a subsequent evaluation of the question with the goal of confirming or rejecting . . . earlier conclusions.'"  "Here, DFC's draft op-eds do not aid it in making any policy decision and are therefore not 'predecisional' for purposes of the deliberative process privilege."  "To the extent there is a split of authority between the Ninth Circuit and the D.C. Circuit, this Court should follow the circuit by which it is bound."  "In this circuit, the purpose of the deliberative process privilege is not to protect government discussions in general but to protect 'frank discussion of legal or policy matters' in particular from public disclosure."  "DFC argues that, because the documents in Category 1 are drafts of the op-ed, they are predecisional to the final version of the op-ed, . . . but this argument does not change the conclusion."  "While the draft nature of a document is certainly a factor in determining whether a document is predecisional or deliberative, . . . here, the documents – draft or not – relate only to how DFC would announce its decision to lend to Kodak."  "They are not predecisional to whether DFC would in fact lend money to anyone, nor are they predecisional to any other 'legal or policy matter[ ]' within its purview."
  
  The court relates that "DFC describes Category 3 as consisting of three emails:  one discussing 'anticipated topics of discussion for a pending meeting' . . . and two containing 'anticipated meeting agendas pertaining to the COVID-19 taskforce . . . ."  Regarding "'anticipated topics of discussion for a pending meeting,'" the court finds that "[t]his is insufficient for the Court to conclude that document . . . is either predecisional or deliberative."  "Without more information on the nature of the meeting DFC was planning, the Court is without basis to conclude that the meeting related to DFC's core policymaking functions, as opposed to, say, upcoming press conferences regarding a decision already made."  "By contrast, DFC's declaration is slightly more specific about [the remaining] documents . . . , stating that they are 'anticipated meeting agendas pertaining to the COVID-19 taskforce.'"  "The natural inference arising from this evidence is that policy-related decision-making happens at DFC's COVID-19 taskforce meetings, and [plaintiff] neither submits evidence nor raises arguments suggesting otherwise."  "[Plaintiff] argues that the agendas do not 'reveal the formulation of any particular policy,' . . . but as the Supreme Court has cautioned, the 'emphasis on the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared.'"  "Thus, DFC's declaration is sufficient to show that these agendas are both predecisional to and deliberative of DFC's policymaking functions."
  
  Regarding the foreseeable harm in the remaining categories, the court finds that "DFC's declaration regarding the harm that would arise from disclosure of the meeting agendas is sufficient to demonstrate that disclosure of the meeting agendas would jeopardize the core deliberative process of DFC officials."  "According to the declaration, these two agendas help DFC decide not only what would be discussed at the meetings but also the 'actual underlying policies' DFC developed and discussed at those meetings."  "Furthermore, '[d]isclosure would inhibit candid discussions and the ability of interagency stakeholders to broach difficult topics.'"  "Applying this principle here, DFC can make better policy when its employees are free to bring topics to their policymaking meetings for discussion and deliberation without fear that the unpolished, unvetted results of their efforts will one day be open to public scrutiny."  "In describing these two agendas and the harm that would result from disclosure, DFC makes a sufficient showing of foreseeable harm."
   
• Litigation Considerations, Relief & Pattern-or-Practice Claims:  The court relates that "[plaintiff] now argues that it is entitled to a declaration that, as a matter of law, DFC violated the timeliness requirements of FOIA."  "[Plaintiff's] contention is rejected for two reasons."  "First, [plaintiff] did not assert a claim for untimeliness in its Complaint, nor has it amended its Complaint."  "Second, 'an agency's failure to comply with [FOIA's] statutory deadlines is not an independent basis for a claim.'"  "Instead, 'the impact of blowing [FOIA's] 20-day deadline' is simply that the requester gains the right to take his or her FOIA dispute to court."  "The Ninth Circuit does recognize that a FOIA requester states a claim by alleging 'that an agency policy or practice will impair the party's lawful access to information in the future.'"  "[Plaintiff] makes a last-ditch effort in its Reply to argue that this is its theory of the case . . . , but this effort is unavailing, as the Complaint in this matter is entirely devoid of any allegations of DFC's pattern or practice of untimely responding."