The N.Y. Times Co. v. Dep’t of Educ., No. 19-693, 2023 WL 2267438 (S.D.N.Y. Feb. 28, 2023) (Taylor Swain, C.J.)

The N.Y. Times Co. v. Dep’t of Educ., No. 19-693, 2023 WL 2267438 (S.D.N.Y. Feb. 28, 2023) (Taylor Swain, C.J.)

Re:  Request for records concerning consideration and development of school safety policies in the aftermath of the February 14, 2018 school shooting at Marjory Stoneman Douglas High School

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

• Exemption 5, Deliberative Process Privilege:  First, regarding certain “information within a memorandum ‘relating to DOE’s discipline guidance’ reflecting ‘an analysis of past agency guidance and its potential relevance or lack thereof to subsequent school safety related events,’” the court holds that “[t]o the extent . . . two documents relating to existing DOE policy and programs consist of descriptions of those initiatives, they reflect the DOE’s ‘effective law and policy’ and are not predecisional, nor are they worthy of protection under Exemption 5.”  “However, to the extent the documents reflect an analysis of how DOE guidance informs the agency’s thinking about ‘school safety’ in aid of the Commission’s development of policy recommendations, such analysis would be privileged as it would reveal the agency’s ‘thinking in the process of working out its policy’ . . . .”  “Put another way, in contrast to a situation in which an agency document ‘focuses on how existing policy applies to “specific cases[,]”’ . . . and hence is not predecisional, the two documents at issue here, drafted between February 14, 2018, and May 14, 2018, appear, based on representations made in [defendant’s] declaration and the Vaughn index, to reflect agency deliberations in connection with the ongoing effort of developing the Commission’s recommendations on school safety, which were presented in the final report to the President in December 2018.”  “However, the Vaughn index is insufficiently precise to permit the Court to determine definitively whether the withheld material from [these two documents] falls into the first category (description of existing policy) or the second category (development of new policy) described in the preceding paragraph.”  “Especially because the second memorandum ‘reflecting internal deliberations on particular DOE programs, activities, and initiatives’ was withheld in full, the Court is concerned that DOE may have improperly withheld information describing its existing policies that is not eligible for protection under Exemption 5.”  “Thus, the DOE is directed to re-review these two documents in a manner consistent with the Court’s analysis, provide additional information to Plaintiffs as appropriate, and make corresponding updates to the Vaughn index.”
  
  “The Court finds that the Vaughn Index and [defendant’s] Declaration are similarly lacking in sufficient detail to permit the Court to determine whether the DOE impermissibly withheld any factual content describing the existing ‘Now is the Time initiative.’”  The court relates that that material consisted of “a ‘[m]emorandum summarizing President Obama’s “Now is the Time” initiative’ including research, analysis, and recommendations relating to progress made on that initiative.”  “The document was withheld in full, but to the extent the document contains purely factual material regarding the pre-existing initiative that is not intertwined with the DOE’s analysis and recommendations regarding school safety, that information is severable and should be produced.”
  
  Additionally, “[t]he Court finds that the evidence proffered by the DOE indicates sufficiently that disclosure of the research memoranda and charts at issue ‘would expose [the] agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.’”  “Unlike an inventory of factual information gathered without a point of view in mind, and no data omitted, . . .  [defendant] testifies that the memoranda at issue here resulted from a selective process in which Department officials chose particular information, including legislation and regulations, they deemed ‘relevant to formulating a policy position on school safety issues.’”  “This information is supplemented by the justifications included in the Vaughn index, which emphasize that these memoranda reflect factual information ‘relevant to particular, identified school safety themes’ . . . such as ‘gun control measures in various states’ . . . and intertwined with ‘analysis’ and/or ‘recommendations’ . . . .”  “On the basis of this evidence, the Court finds that these memoranda are deliberative and, because they were prepared between February 14, 2018, and May 14, 2018, in support of the Commission’s efforts to develop its policy recommendations on school safety, which were not presented until December 18, 2018, the Court also finds they are predecisional.”  “Moreover, [defendant’s] Declaration proffers that the Department has ‘conducted a line-by-line review of these records’ and ‘[w]herever possible, purely factual information has been segregated and released.’”  “To the extent factual information was withheld, [defendant] represents that the information was ‘either inextricably intertwined with deliberative content, such that the facts could not be released without exposing the deliberative information, or, in some instances, [that] the factual information amounted to the selection of certain facts from a broader universe of facts in a manner that reveals the writer’s or editor’s analysis as to which specific facts are most relevant to their deliberative position.’”  “The DOE has also met its burden of demonstrating that disclosure of these memoranda would cause foreseeable harm to the agency’s deliberative process.”  “[Defendant’s] Declaration proffers that disclosure would result in agency staff being ‘less likely to offer full and candid recommendations if their deliberations were to be released to the public, particularly on an issue of such intense public interest’ as school safety.”  “The DOE submits that the topic of school safety ‘is a subject of intense national interest’ which ‘results in hotly contested policy debates’ and a ‘staffer at DOE may be less willing to offer candid advice on such a topic if that staffer knows his or her statements will appear’ in public forums.”
  
  Also, regarding “a draft memorandum ‘listing particular statements’ made by ‘Secretary Kirstjen Nielsen and Attorney General Jeffrey Sessions in press briefings and media quotations,’” the court finds that “[t]he DOE proffers that the draft memorandum compiling particular statements made by two public officials ‘reflects internal judgement and deliberation in selecting and listing particular statements from public officials that may be relevant to DOE’s developing approach to school safety.’”  “In addition, [defendant] represents that this memorandum was prepared ‘prior to the Commission’s final report’ by officials ‘culling through a broad universe of potentially relevant information and selectively choosing which information was relevant to issues being addressed by the Department and the [Federal Commission on School Safety].’”  “[Defendant] testifies that release of this information would be harmful because ‘agency staff would be less likely to offer full and candid recommendations if their deliberations were to be released to the public, particularly on an issue of such intense public interest.’”  “Moreover, the DOE argues disclosure of this type of document cataloging the information officials deemed relevant to the Commission’s policy-making process would ‘shed light on DOE’s internal deliberations.’”  “For the same reasons the Court cited in finding that the DOE’s charts and memoranda detailing its research and analysis of relevant federal and state legislation to be properly withheld under the Deliberative Process Privilege, the Court finds that this memorandum is also protected under the Privilege.”
  
  Next, regarding “an ‘analysis of a media article and its potential application to DOE policy relating to school safety,’” the court relates that “DOE argues that although the ‘media article is a matter of public record . . . internal deliberations as to whether this media article should affect DOE policy are clearly deliberative in nature.’”  “DOE proffers that redacted material in this email concerned an ‘analysis’ of the article and ‘its potential application to DOE policy relating to school safety.’”  “Thus, because the email ‘related to the process by which [the] policies [of the Commission] [were] formulated,’ . . . and predates the Commission’s final report . . . the Court finds that the withheld material was deliberative and predecisional.”  “Moreover, because the Court has already determined that the DOE has met its burden of showing that harm to the deliberative process would result from the disclosure of these types of ‘documents reflecting policy analysis and deliberations relating to the topic of school safety,’ the Court finds that the DOE's redactions were proper under Exemption 5.”
  
  Also, regarding “briefing memoranda provided to Secretary DeVos to prepare her for upcoming events,” the court finds that “the documents at issue concern briefing memoranda for Secretary DeVos’ upcoming interviews with ‘Fox and Friends’ and ‘Today,’ reflecting ‘relevant information’ ‘staff selected’ as well as ‘various recommendations to prepare [the Secretary]’ for these upcoming events ‘relating to the issue of school safety’ . . . , as well as ‘[i]nternal briefing book[s] for the Secretary’s upcoming events reflecting frank internal communication in which staff selected what they felt were the most relevant issues to brief [the Secretary].’”  “[Defendant’s] Declaration proffers that the talking points for Secretary DeVos’ upcoming interviews ‘were prepared before final remarks were made,’ contained ‘recommendations and opinions from staff to high-ranking officials on how policy and information may best be presented’ on ‘school safety,’ a matter of ‘extremely heightened public interest[.]’”  “Similarly, [defendant’s] Declaration proffers that the briefing books consisted of ‘material compiled by Departmental staff to prepare high-ranking official for upcoming events’ and contained ‘staff opinions, advice, and recommendations as to [those] future events.’”  “Because these documents reflect internal strategy for upcoming public events seeking input on the Commission’s policy-making process of developing recommendations on school safety, the Court finds that they are predecisional and deliberative.”  “Moreover, to the extent that factual material was withheld in these talking points and briefing memoranda, the DOE has proffered that the selected factual narrative was ‘curated and selected . . . [, and] culled by staff, representing those sets of facts the staff believe are of the greatest import to the official.’”  “Based on these proffers, together with the DOE’s representations that purely factual information has been segregated and produced, . . . the Court finds that the DOE has proffered sufficient evidence to demonstrate that the factual information withheld in these documents was ‘assembled through an exercise of judgment,’ . . . ‘intertwined with deliberative policy discussions,’ . . . and thus protected under the Privilege.”  “The DOE has also met its burden of establishing that disclosure would lead to reasonably foreseeable harm to the agency’s deliberative processes.”  “[Defendant’s] Declaration proffers that disclosure of the talking points and briefing materials at issue would harm the process by which ‘staff develops and recommends certain information they believe would be the most appropriate and beneficial for high-ranking officials to present . . . particularly where the subject matter of the policy is of extremely heightened public interest, such as school safety, and particularly where, as here, the public events sought input on potential policy issues for which final agency recommendations had not yet been made.’”  “Release of these materials would lessen the ability of staff members to ‘prepare high-ranking officials to represent the Department and make informed decisions on the Department’s behalf’ as well as to provide ‘candid recommendations.’”
  
  Regarding “notes from ‘intra-agency meeting[s] on school safety,’” the court finds that “[b]ecause these documents reflect ‘opinions, recommendations and deliberations comprising part of the process by which’ the Commission formulated its ‘decisions and policies’ related to school safety in preparation for its final report, the Court finds that they are protected from disclosure under the Deliberative Process Privilege.”  “To the extent Plaintiffs argue that the notes summarizing the ‘documents reviewed’ at the intra-agency meetings reflect purely factual material that must be disclosed, . . . that argument is unavailing in light of the Court’s determination above that factual material, when selected and organized pursuant to particular policy objectives, reflects the agency’s deliberative process.”  Regarding foreseeable harm, the court finds that “the ‘fact that the final report did indeed note that the recommendations contained therein were the result of vigorous policy debates is the very reason that the deliberative process privilege must be enforced’ – without the privilege, ‘staff would be less willing to engage in those debates, . . . and the executive branch’s decision-making process would be hampered as a result.’”
  
  Regarding other meeting notes, the court finds that “the meeting notes concern the ‘scope of the school safety commission’s work, location of meetings, timeline, and topics of discussion.’”  “To the extent that the meeting notes describe the ‘scope of the [Commission’s] work,’ the ‘timeline’ involved, and the ‘topics of discussion,’ in support of its development of its recommendations, the Court finds that such material ‘reflects the planning process of’ the Commission and is sufficiently deliberative.”  “However, the Court finds that any redacted information relating to the ‘location of [the Commission’s] meetings’ ‘is not predecisional, as it did not “actually help[ ] . . . officers within [the Commission] make a specific policy decision,”’ . . . nor ‘bear on the formulation or exercise of policy-oriented judgment.’”  “Rather, information about the locations of meetings reflects purely factual material of the type that is not reflective of the Commission’s policy-making process and must be disclosed.”  “Thus, Plaintiffs’ motion for summary judgment is granted only as to the redactions in [these] documents . . . that relate to the locations of the Commission’s meetings and is otherwise denied.”
  
  Exemption 7(A):  “[T]he Court finds that the DOE has proffered sufficient evidence to demonstrate that it properly withheld the DHS and FBI records pursuant to Exemption 7(A).”  The court relates that “[t]he DOE argues that it has permissibly withheld, in its entirety, pursuant to Exemption 7, an April 13, 2018 report from the FBI ‘of specific and identified threats, including threats of bombing at schools and school shootings, including quotes from threats received’ and ‘references [to] ongoing FBI investigations,’ and also including ‘particular factual details of interest to the FBI.’”  “The DOE also represents that it properly withheld, in its entirety, pursuant to Exemption 7, an April 16, 2018, memorandum from DHS including a ‘summary of public safety incidents at schools[,]’ including ‘active DHS public safety investigations.’”  “The Court finds that the DOE has met its burden to justify withholding the DHS and FBI reports under Exemption 7(A).”  “First, the DOE has confirmed publicly, through the [agency’s] Declaration and the Vaughn index, that the documents relate to ongoing law enforcement proceedings, namely investigations into school safety incidents.”  “Second, the DOE has explained, in [defendant’s] Declaration, the types of harms that are reasonably likely to occur should these records be disclosed.”  “For example, [defendant’s] Declaration proffers that release of the records ‘could alert current investigatory targets as to the existence and/or scope of an open investigation, thus impeding the investigation.’”  “As the DOE explains, ‘[w]hile it . . . [may] not [be] a secret to the suspect that the suspect made the threat, it is not necessarily known to that suspect that the FBI is investigating the threat’ and ‘informing that suspect that he or she is under investigation . . . certainly could reasonably be expected to cause . . . harm.’”  “Moreover, the DOE has certified that it has ‘conducted a line-by-line review of these records’ . . . and an ‘agency’s explanation that records are exempt in their entirety is sufficient to satisfy its segregability obligations with respect to the documents withheld under Exemption 7(A).’”