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The Reps. Comm. for Freedom of the Press v. FBI, Nos. 15-1392 & 18-345, 2022 WL 1908841 (D.D.C. June 3, 2022) (Leon, J.)


The Reps. Comm. for Freedom of the Press v. FBI, Nos. 15-1392 & 18-345, 2022 WL 1908841 (D.D.C. June 3, 2022) (Leon, J.)

Re:  Records concerning "the FBI's alleged practice of impersonating members of the news media"

Disposition:  Granting defendants' motion for summary judgment; denying plaintiffs' motion for summary judgment

  • Litigation Considerations, Foreseeable Harm Showing:  "In sum, the declarations' demonstration of foreseeable harm is sufficient."  "'In the context of withholdings made under the deliberative process privilege, the foreseeability requirement means that agencies must concretely explain how disclosure "would"—not "could"—adversely impair internal deliberations.'"  "I agree with defendants that the Government, through its supplemental declarations, has satisfied the required foreseeable harm showing."  "The supplemental declarations' descriptions detail the context of the agency action at issue by outlining the process through which OIG conducts a review of a DOJ component and explaining how that review led to the draft (and, ultimately, the final) report on the FBI's practices and operations."  "And the Government's declarations demonstrate why disclosure of the draft resulting from that process would impede the agency's deliberations during that same process in the future."  "These are hardly the 'cookie-cutter formulations' that our Circuit Court rejected previously."  The "supplemental declarations sufficiently 'explain the particular sensitivity of the types of information at issue [and] the role that they play in the relevant agency decisional processes.'"  "[T]he declarants offered a 'focused and concrete demonstration' of the foreseeable harms that would result from disclosure of the draft report—namely, why disclosure 'will . . . actually impede th[e] same agency deliberations going forward.'"  "In short, [the declarant] explains, the accuracy and the appropriateness of OIG's review and future reports would suffer."  "Further, the release of draft reports 'would reasonably cause confusion or misunderstanding about the OIG's final statement on the FBI criminal investigation and underlying policies it reviewed,' which would 'harm the OIG's credibility.'"  "The Government therefore has articulated a 'link between the specified harm and the specific information contained in the material withheld' by explaining that 'chilling candid discussion among' and between OIG and FBI 'would impair the internal discussions "necessary for efficient and proper"' fact-finding and review."  "This foreseeable damage to the quality of OIG's investigations by chilling internal discussion in OIG and between OIG and FBI is precisely the harm the deliberative-process privilege seeks to prevent." 
Court Decision Topic(s)
District Court opinions
Litigation Considerations, Foreseeable Harm Showing
Updated June 22, 2022