Nat'l Sec. Archive v. CIA, No. 12-5201, 2014 WL 2053829 (D.C. Cir. May 20, 2014) (Kavanaugh, J.)

Nat'l Sec. Archive v. CIA, No. 12-5201, 2014 WL 2053829 (D.C. Cir. May 20, 2014) (Kavanaugh, J.)

Re: Request for records concerning CIA's internal investigation of Bay of Pigs Operation in Cuba

Disposition: Affirming district court's grant of defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The court affirms the district court's decision and supports its holding by addressing plaintiff's specific arguments.  First, the court agrees with plaintiff "that there was no final" document, but, although this "is true," the court "do[es] not see the relevance of the point" because "the draft is still a draft and thus still pre-decisional and deliberative."  Second, the court finds that "an agency does not forfeit the benefit of a FOIA exemption simply because of its prior decision to voluntarily release other similar information."  Third, the court discounts plaintiff's "claims that the CIA has identified no concrete harm that would result from release of the draft" because the court finds that "'Congress enacted FOIA Exemption 5 ... precisely because it determined that disclosure of material that is both predecisional and deliberative does harm an agency's decisionmaking process.'"  Fourth, the court disagrees with plaintiff's contention "that the passage of time . . . renders the deliberative process privilege inapplicable here" because "Exemption 5 of FOIA does not contain a time limit."  Fifth, the court disagrees with plaintiff's contention "that some portions of the draft may contain factual material that is not protected by the deliberative process privilege and is 'reasonably segregable'" and finds that "[i]n producing a draft agency history, the writer necessarily must 'cull the relevant documents, extract pertinent facts, organize them to suit a specific purpose,' and 'identify the significant issues'" and that "[i]n doing so, 'the selection of the facts thought to be relevant' is part of the deliberative process; it necessarily involves 'policy-oriented judgment.'"
  
  Circuit Judge Rogers wrote separately to dissent.  Judge Rogers stated that "[b]ecause the agency's current declarations fail to meet its burden to show the draft is fully protected from disclosure under Exemption 5, [she] would remand the case to the district court for further consideration."  First, Judge Rogers notes that "the agency's FOIA-related release of [another draft] appears from the record to be 'fundamentally inconsistent with [the agency's categorical] claim that release of [the draft at issue] would threaten the decisionmaking process of the agency.'"  Second, Judge Rogers notes that the draft at issue "was rejected at the first stage of the agency's review process . . . and was not part of the agency 'give-and-take of the deliberative process by which the decision itself is made.'"  Last, Judge Rogers notes that "the agency has provided this court no basis to conclude that all factual material in the draft history reflects deliberative judgments."