Reporters Comm. for Freedom of the Press v. FBI, No. 20-5091, 2021 WL 2753938 (D.C. Cir. July 2, 2021) (Millett, J.)

Reporters Comm. for Freedom of the Press v. FBI, No. 20-5091, 2021 WL 2753938 (D.C. Cir. July 2, 2021) (Millett, J.)

Re:  Request for records concerning FBI agents impersonating members of press during investigation of incident at a school

Disposition:  Affirming in part, reversing in part, and dismissing in part as moot district court's grant of government's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the District of Columbia Circuit relates that "[t]he first category of documents consists of emails discussing proposed changes to Director Comey's draft letter to the New York Times' editor, in which he defended the FBI's media impersonation policy and the sufficiency of existing internal limitations on the FBI's use of media impersonation."  "[The court] hold[s] that, under the circumstances, those communications fall within the deliberative process privilege."  The court finds that "[t]he FBI's high-ranking officials were debating how to formulate the most appropriate and effective response to an ongoing national controversy that threatened to eliminate or destabilize its existing policy practice."  "The emails, in other words, were part of an internal dialogue about critical judgment calls aimed at advancing the agency's interests in the midst of a vigorous public debate about an FBI undercover policy with a decidedly uncertain future at the time."  "And while we do not determine whether materials are predecisional based on what decision (if any) was later made, . . . the proof is in the pudding here:  The FBI ultimately did change its policies to prohibit agents from impersonating members of the media unless such activity has been expressly approved by high-level Bureau officials."  "In that way, the emails at issue here are quite distinct from documents that discuss, describe, or defend an already-determined agency policy."  "The emails were also deliberative."  "They contain the type of back-and-forth exchange of ideas, constructive feedback, and internal debate over how best to promote and to preserve the undercover policy that sits at the heart of the deliberative process privilege."  The court relates that "the News Organizations contend that these emails fall outside of the privilege's protection because they were sent from Director Comey to his subordinates rather than vice versa."  The court finds that "[t]hat is incorrect."  "There is no such directional precondition to protection under the deliberative process privilege."  "True, we have said that Exemption 5 is generally 'designed to protect subordinates' advice to superiors[.]'"  "But at the end of the day, the key to whether a document is deliberative is whether it is part of the 'give-and-take' of the 'consultative process.'"  "And when such an internal agency dialogue is underway, communications by both the giver and the taker can fall within the privilege."  "Notably, there is no allegation that Director Comey was providing any sort of direction or explaining the basis for a final decision to his subordinates in these emails."  "If there were, the deliberative process privilege's application would be more tenuous."
  
  The court relates that "[t]he deliberative process privilege also applies to the pre-publication drafts of the Inspector General's report."  The court finds that "[t]he News Organizations do not contest that the drafts were both predecisional and deliberative."  "Rightly so."  "Proposed drafts of a non-final agency decision that are still undergoing review, debate, and editing are the type of deliberative work in progress that falls at the core of the deliberative process privilege."  "The News Organizations nevertheless argue that any portions of these drafts that were incorporated into the final report are stripped of the deliberative process privilege because they were adopted by the agency as its final agency action."  "That makes little sense."  "Whatever appears in the final report is already available to the News Organizations as final agency action."  "Peeking behind that to discern what portions of drafts were and were not incorporated would reveal the very deliberative process that the privilege protects."  "Anyhow, the News Organizations misunderstand our case law governing when an agency's adoption of privileged material strips it of deliberative process protection."  "In this context, Exemption 5's aegis falls away only when an agency 'chooses expressly to adopt or incorporate by reference' the privileged information in its final decision."  "Nothing like that happened here."  "The final Inspector General report does not mention any of the earlier drafts, much less expressly adopt their reasoning as its own."  "Its content stands on its own."  "So the draft reports retain their privilege from disclosure."
  
  The court finds that "[t]he News Organizations' arguments fare much better as to the FBI's Factual Accuracy Comments."  "Those documents contain comments from the FBI to the Inspector General on the accuracy of purely factual statements in the draft report."  "The factual corrections, of course, were predecisional because they were provided to the Inspector General before the final publication of the Inspector General's report."  "But the government has failed to establish that the Factual Accuracy Comments were deliberative, as required by the second prong of the test for protection under the deliberative process privilege."  "Here, the separation between fact and deliberation is quite stark."  "The document containing the factual corrections is a very simple form that contains blanks on which a commenter is limited to identifying the precise location in the Inspector General Report at which a factual correction is being proposed, the fact that is being corrected, and the proposed correction . . . ."  "This format cabins each correction or change in an isolated and easily segregable fashion, with no apparent room for opinion or non-factual commentary."  "In that way, its design confines the communication to purely factual (or otherwise segregable) content, and the government has not shown otherwise."  "The government argues that all comments on a draft are as privileged as the contents of the draft itself because disclosing the comments necessarily reveals whether those comments were incorporated."  "But the FBI did not submit these comments for the purpose of exercising 'editorial judgment[,]' such as that the matter concerned 'was unimportant or otherwise inappropriate for publication.'"  "And the FBI was not the agency authoring the report; it was the subject of the report."  "So the fact-checking exercise in which the FBI was asked to engage did not call for judgment or the candid exchange of ideas."  "Neither do the government's draft PowerPoints fall within the deliberative process privilege."  "The PowerPoints at issue are preliminary versions of an FBI presentation in February 2015 to the White House – months after the controversy arose – that did nothing more than explain the existing FBI policy concerning the conduct of undercover operations."  "The government argues that a 'draft is still a draft' even where there is 'no final agency document because a draft died on the vine.'"  "That is true."  "It is also beside the point."  "No one disputes that the draft PowerPoints are drafts."  "But to fall within the deliberative process privilege, the drafts must also be deliberative in content."
  
  The court relates that "[t]he final group of documents at issue is a group of emails between FBI attorneys and other FBI personnel discussing the implementation of the new interim policy on impersonation of journalists."  The court finds that "[t]hese emails fall within the deliberative process privilege."  "Because the emails discussed the content of a new policy and alternative paths for its effective implementation, they fall squarely within the deliberative process privilege."
   
• Exemption 5, "Foreseeable Harm":  The Court of Appeals for the District of Columbia Circuit relates that "[t]he FBI's broad assertion of foreseeable harm from release of the records under its control was contained in just two 'umbrella paragraphs' that purported to sweepingly address 'all of the deliberative information in the case.'"  "But the assertion of harm in those umbrella paragraphs is wholly generalized and conclusory, just mouthing the generic rationale for the deliberative process privilege itself."  The court finds that "[t]he FBI's supplemental declaration, which solely concerns the Factual Accuracy Comments, also falls far short."  "According to [the FBI], disclosure of those comments 'would set a precedent where employees would come to fear their unrefined opinions could become subject to public disclosure through the FOIA.'"  "But the declaration never explains how the purely factual material contained in those Factual Accuracy Comments constituted 'unrefined opinions,' . . . nor how release of that material provided by the FBI to the Inspector General would chill future inter-agency consultations."  "After all, the FBI is obligated by law to provide information and assistance to the Inspector General."  Similarly, the court finds that OIG's "cookie-cutter formulations nowhere explain why actual harm would foreseeably result from release of the specific type of material at issue here."  "As for the emails concerning Director Comey's letter to the editor of the New York Times and the emails among FBI personnel concerning the undercover impersonation policy, the foreseeability of harm has been shown on this record."  "With respect to the Comey emails, the record establishes the unique sensitivity of discussions among Director Comey and high-ranking FBI officials about how to respond to an ongoing crisis that threatened existing covert Bureau operational tactics."  "The very context and purpose of those communications bearing on sensitive undercover operations in the midst of a policy crisis make the foreseeability of harm manifest."  "For similar reasons, the very nature of the follow-on discussions among FBI personnel about whether and how to change those undercover tactics and how to effectively implement such changes amid ongoing law enforcement operations conveyed particularized indicia of foreseeable harm."  "In short, the sensitivity of the context in which these conversations arose as well as their subject matter, and the need for confidentiality in discussions of undercover tactics, together provide the particularized context for a finding of foreseeable harm as to both sets of emails."