Seife v. Dep't of State, No. 16-7140, 2019 WL 1059994 (S.D.N.Y. Mar. 6, 2019) (Woods, J.)

Seife v. Dep't of State, No. 16-7140, 2019 WL 1059994 (S.D.N.Y. Mar. 6, 2019) (Woods, J.)

Re:  Requests for records concerning press briefings given by anonymous senior agency officials

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

• Exemption 5, Deliberative Process Privilege:  "[T]he Court is now able to conclude that the material marked as withheld in the Revised Vaughn Index is predecisional and deliberative, save for [a few] exceptions."  The court relates that "[t]he Revised Vaughn Index resolves [the question regarding the location of the documents in the decision-making process] by including the time such emails were sent."  The court also finds that "[t]he Revised Vaughn Index also adequately describes how the emails at issue were 'generated as part of a continuous process of agency decision making, viz., how to respond to on-going inquiries,' which adequately demonstrates that those materials are predecisional."  "The withheld portion of the emails at issue are also deliberative in nature."  "In the Revised Vaughn Index, the State Department has remedied [its] deficiency by including specific descriptions of the withheld portions of the emails, such that the Court can now conclude that the withheld portions relate to evolving policy determinations being made by the State Department, which were ongoing at the time the emails were sent."  "Accordingly, the Court can now conclude that the withheld material in Category One is both predecisional and deliberative."
  
  Similarly, the court finds that "[t]he State Department has also remedied the deficiencies in the Original Vaughn Index as to the proposed talking points, anticipated questions and answers and draft opening statements . . . ."  "First, the State Department has now produced the final versions of talking points which had previously been withheld, and is now only withholding draft documents."  "Second, the Revised Vaughn Index provides a more detailed account of the withheld materials, which allows the Court to determine its relation to the 'function and significance of the agency's decision-making process.'"
  
  Additionally, "[t]he Revised Vaughn Index remedies that concern, and contains information sufficient for the Court to conclude that the withheld material regarding draft rollout schedules was predecisional and deliberative . . . ."  The court finds that "[t]he document is predecisional as to the final rollout plan, and is deliberative in that it reflects the State Department's evolving views as to the sequence and timing of activities surrounding that announcement, including Congressional testimony."  "Further, the additional information in the Revised Vaughn Index allows the Court to conclude that the activities described, such as coordinating briefings with Congressional testimony, are not 'routine operating decisions which [cannot] be withheld under the deliberative process privilege.'"
  
  The court also holds that "[n]o evidence has been presented which demonstrates that the draft documents are in fact final State Department positions[.]"
  
  Finally, the court finds that it does not have enough information to address several categories.  Notably, the court finds that "[i]t is insufficient for the State Department to claim it is 'unclear' whether the edits were accepted or rejected."  "The result of that lack of clarity is that the Court has been presented with no basis upon which it can determine that the proposed edits do not constitute final articulations of State Department Policy, rather than deliberations."  "To be clear, the State Department has indicated that these documents are 'not in final form,' however, that, alone, is insufficient to demonstrate that these documents reflect continuing deliberations as to evolving policy."
   
• Exemption 6:  The court holds that "Defendant's motion for summary judgment as to its use of Exemption 6 to withhold the identity of the three 'on background' briefers described in the ex parte Declaration is granted, and Plaintiff's motion for summary judgment is denied."  "However, also for the reasons articulated below, the Court cannot determine, on the record before it, the identity of [one] briefer . . . , whether the identify of that briefer was withheld, or determine the propriety of any such withholding."  "[T]he Court finds that the privacy interests asserted outweigh the public interest in disclosure."  "Simply put, the concerns associated with disclosure of the briefers' identities, as disclosed in the ex parte Declaration, are serious."  "On the other hand, the State Department's decision to voluntarily release the identities of briefers who are no longer are employed by the Government will allow [plaintiff], and the public, to test the State Department's assertions as to the nature of the 'on background' briefers."  "Accordingly, the public's interest in the disclosure of the remaining withheld identities is diminished, while the serious privacy concerns at issue remain palpable."  "Accordingly, on balance, the Court finds that the substantial privacy interests of the briefers at issue in the ex parte Declaration outweigh the public's interest in disclosure, and those identities may be properly withheld pursuant to Exemption 6."  However, "the Court defers judgment as to the identity of [one] individual, and requests that the State Department provide that information to the Court, ex parte if need be."