The New York Times Co. v. DOJ, No. 19-1424, 2022 WL 2304173 (S.D.N.Y. June 27, 2022) (Polk Failla, J.)

The New York Times Co. v. DOJ, No. 19-1424, 2022 WL 2304173 (S.D.N.Y. June 27, 2022) (Polk Failla, J.)

Re:  Request for report issued by independent monitor tasked with overseeing Intervenor Volkswagen AG's compliance with plea agreement that it entered into with DOJ following the discovery of VW's scheme to evade emissions requirements

Disposition:  Ordering agency to produce document in accordance with Opinion and Order

• Exemption 5, Deliberative Process Privilege:  The court relates that "[i]n [its previous opinion], the Court found that the Report is both predecisional and deliberative, but observed that Defendant had withheld factual information likely not covered by the deliberative process privilege."  "Based on its in camera review of the complete Report and Defendant's legend explaining the bases for its redactions, the Court finds that Defendant's redactions pursuant to the deliberative process privilege are, with some limited exceptions, appropriate."  "As discussed in [the previous opinion], the Report 'describes the Monitor's extensive interviews, meetings, and review of company policies and focuses on the Monitor's list of recommendations and observations regarding the VW compliance program.'"  "The Court has no difficulty finding that the Monitor's recommendations and observations have been properly redacted pursuant to the deliberative process privilege."  "This information reflects the Monitor's analysis of VW's compliance and remediation efforts in response to the emissions scandal and was offered to assist Defendant in determining whether VW was complying with the terms of its plea agreement."  Additionally, the court finds that "[t]he Monitor's descriptions of his interviews and meetings, as well as his review of VW's policies, present closer calls under the privilege."  "In contrast with the Monitor's recommendations and observations, this information largely consists of facts relating to the steps VW has taken to address the emissions scandal."  "While these descriptions are more properly categorized as factual than deliberative, the Court's in camera review has confirmed that certain of these materials have been selectively culled by the Monitor, and, further, that such materials 'are inextricably intertwined with policy making recommendations so that their disclosure would compromise the confidentiality of deliberative information that is entitled to protection under Exemption 5[.]'"  "As the Court observed in [its previous opinion], the Monitor wrote the Report pursuant to his mandate to perform an 'initial review' that 'set[s] forth the Monitor's assessment and, if necessary, mak[es] recommendations reasonably designed to improve the effectiveness of [VW's] program for ensuring compliance[.]'"  "In this context, the facts related to VW's compliance and remediation efforts included in the Report reflect the Monitor's assessment of the information that supported his observations and recommendations and that was relevant to Defendant's evaluation of VW's compliance with the plea agreement."  "The release of this information would reveal the factors the Monitor and Defendant deemed to be relevant to such decisions as 'whether VW was meeting its obligations under the Plea Agreement'; 'whether VW was on track to complete its obligations under the Plea Agreement within the requisite time frame'; and 'whether VW was enhancing its compliance program and internal controls in a manner tailored to address the past violations[.]'"
  
  Separately, the court finds that "[certain] sections are not inextricably intertwined with the deliberative portions of the Report and Defendant has not identified any basis to find that their release would reveal the Monitor's or Defendant's deliberative processes."  Also, "the Court finds that Defendant has been inconsistent in its treatment of certain background information about VW's structure, policies, and practices, which information predates the emissions scheme, the disclosure of same, and the appointment of the Monitor."  "Certain of this background information was previously disclosed to the public, while other analytically indistinct material remained redacted."  "The Court believes that this background information is sufficiently attenuated from any deliberative process that its disclosure would not reveal that process and thus, for consistency, orders its disclosure."
   
• Exemption 4:  The court holds that "[u]pon review of the Report and Intervenor's legend, the Court finds that Defendant has improperly withheld from disclosure certain non-commercial information under the guise of Exemption 4."  "For example, Defendant has redacted under Exemption 4 the Monitor's discussion of whether VW was meeting its obligations under the plea agreement; information related to VW's internal investigations into the emissions scandal; and other similarly noncommercial information."  "This information does not constitute confidential business information, and must be produced to the extent it is not exempt under the deliberative process privilege."  "With particular respect to the redactions claimed solely under Exemption 4, the Court finds that these redactions correspond to information about 'VW's corporate culture, compliance structure, [and] code of conduct' that 'cannot fairly be said to have intrinsic commercial value or to relate to the income-producing aspects of a business[.]'"