New York Times Co. v. Dep't of State, No. 19-645, 2019 WL 2994288 (S.D.N.Y. July 9, 2019) (Rakoff, J.)

New York Times Co. v. Dep't of State, No. 19-645, 2019 WL 2994288 (S.D.N.Y. July 9, 2019) (Rakoff, J.)

Re:  Request for records concerning trip that Transportation Secretary Elaine Chao had planned to take to China

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

• Exemption 5, Deliberative Process Privilege:  "After reviewing the contested redactions in camera, the Court agrees with State that the redactions in the [one] Exchange are very largely justified by the deliberative process privilege."  "As State argues, almost all of the redacted communications include predecisional discussions about possible attendees at Secretary Chao's meetings and possible topics of conversation."  "Furthermore, most of the redacted material is deliberative, as it reflects the planning process of various executive branch actors."  "And the Court agrees with State that there is a reasonable foreseeability of harm if the redacted material were to be disclosed."  "There are two redactions, however, that are not justified by the deliberative process privilege[]" – "a list of locations that Secretary Chao planned to visit" and "a factual response to [a] request."
  
  Similarly, "[a]fter reviewing the contested redactions in camera, the Court concludes that each of State's redactions is justified by either the attorney-client privilege or the deliberative process privilege, or, in many cases, both."  "As State explains in its Vaughn Index and accompanying declarations, the subsequent discussions in the second family 'contain confidential communications from State employees to a State attorney for the purpose of obtaining legal advice, confidential communications from a State attorney to a State employee[ ] providing legal advice, and communications between State attorneys reflecting the development of that legal advice.'"  "The Court agrees with State's characterization of the redacted communications, and it concludes that these redactions are not more extensive than necessary."  "Moreover, the Court agrees that State has made a sufficient showing of foreseeable harm if the redacted material were to be disclosed."