Washington Blade v. U.S. Dep’t of Labor, No. 20-2591, 2024 WL 4664453 (D.D.C. Nov. 4, 2024) (Moss, J.)

Washington Blade v. U.S. Dep’t of Labor, No. 20-2591, 2024 WL 4664453 (D.D.C. Nov. 4, 2024) (Moss, J.)

Re:  Request for all emails that include words “‘religion’” or “‘religious’” from January 20, 2017 to August 30, 2019

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:  The court relates that “Plaintiffs first challenge the Department’s application of the deliberative process privilege to emails discussing draft responses to questions from Congress.”  “[T]he Court concludes that the ‘synopsis of the major issues covered,’ . . . at least arguably reflects more than ‘purely factual material.’”  “It is, of course, possible that in creating the bullet list agency officials were required to ‘cull[ ]’ topics ‘from the much larger universe’ of questions . . . and that the culling process reflected internal agency deliberations on questions of policy or communications . . . .” “Indeed, the Supplemental . . . Declaration says as much, asserting that ‘[t]he withheld information . . . does not merely reflect factual information, nor is it factual in nature, but reflects carefully selected ideas that [the Department] considered including within the QFR.’”  “But even with this final assertion, the Court is unpersuaded that the Department has offered sufficient detail ‘to enable the court and the opposing party to understand the withheld information in order to address the merits of the claimed exemptions.’”  “The agency bears the burden, and it cannot meet that burden with vague or conclusory assertions.”  “As things now stand, the Court cannot determine whether the Department was working from a list of questions propounded by the House Committee, whether it had prepared its own list of issues that it wanted to address, or whether it was picking and choosing from questions raised at the hearing.” Regarding an additional email discussing these types of congressional responses, the court holds that “[it] . . . is not in a position to determine which party’s characterization of the record is correct.”  “The Court may not guess.”
  
  “Plaintiffs also challenge the Department’s redaction of a series of records in which [Department of Labor’s Office of Federal Contract Compliance Programs’ (“OFCCP”)] employees discuss how to respond to inquiries from the press about the religious accommodation directive.”  “Plaintiffs do not dispute that prior drafts of responses to media inquiries are, as a general matter, subject to the deliberative process privilege.”  “Rather, their central contention is that while OPA may have final approval over the Department’s responses to the media, the redacted draft responses OFCCP provided are ‘clearly of a final nature’ and any subsequent review by OPA was not meaningful.”  The court first analyzes “a discussion between OPA and OFCCP employees about how to respond to a press inquiry from [a media entity].”  The court finds that “it is clear from the face of the documents themselves and the declarations provided that the redacted material reflects predecisional opinions about the best way to answer the relevant media inquiry.”  “It is also predecisional because, unlike other materials of a similar nature that the Department has withheld, there is no reason to believe that this ‘preliminary assessment’ was ever adopted as a final, agency response.”  The court next analyzes “an exchange that begins with an email from an OPA employee that shares an inquiry from a . . . reporter with OFCCP and other Department of Labor employees and proposes a response, which is redacted in the version of the document that the Department produced to Plaintiffs.”  “Because the document plainly states that the proposed response was ‘approv[ed]’ just hours after the internal request seeking ‘urgent’ approval was circulated, and because the Department has offered no explanation that might counter the evidence that the redacted paragraph was formally adopted by the Department without a modification of any sort, the Court will grant summary judgment in Plaintiffs’ favor with respect to [this document].”  “An agency’s adoption of a draft press release cannot be established through an agency’s ‘vague or equivocal statements implying that a position presented in a deliberative document has merit,’ and the Court therefore agrees with Plaintiffs that the Department must do more here.”  Next, the court considers “a ‘summary of [the] directive’ that had been drafted by the Director of the OFCCP and ‘sent to OPA at their request for providing in response to press inquiries, which would be the basis for the talking points.’”  The court finds that “[n]one of [defendant’s] statements . . . squarely addresses the issue at hand – that is, whether the response drafted by OFCCP was the one that the Office of the Secretary and/or OPA ultimately approved and provided to the press or incorporated into the final FAQs.”  “The Court, accordingly, concludes that a genuine issue of material fact precludes the Court from granting summary judgment to either party with respect to these records.”  “The same can be said concerning the portion of an email chain containing ‘a draft response to an inquiry from the public regarding the religious exemption directive.’” “Once again, however, the Department sidesteps the question whether the proposed response was adopted by the Department, and, given the seniority of the drafter and the ‘time sensitivity’ emphasized by the participants in that email exchange . . . the Court cannot assume – absent any evidence beyond the Director’s request that OPA ‘check with OSEC’ – that the proposed response was, in fact, modified in any way before it was released.”  Next, the court considers a discussion of “questions OPA forwarded from a [media company] reporter about the ‘religious directives.’”  The court finds that “[defendant’s] assertion that the redacted material ‘does not necessarily reflect the final response’ provides little comfort; at no point does the Department attest that the tweaked, redacted passage in question remained predecisional and deliberative.”  “Plaintiffs have thus raised a sufficient question as to whether the redacted response represents the Department’s final position regarding the reporter’s question to preclude the Court from granting either party summary judgment with respect to those two records.”  The court then analyzes “portions of an email exchange concerning an inquiry from Bloomberg Law about ‘a line about rulemaking in one of [the Department’s] recent directives.’”  “The Court agrees that the redacted message [at issue] has an air of finality that the Department does not address in its Vaughn indices or declarations.”  The Court will, accordingly, deny both parties’ motions for summary judgment with respect to the final redacted passage in this email chain.” Next, the court reviews “‘communications from [the Civil Rights and Labor-Management Division of the Office of the Solicitor (“CRLM”)], OFCCP’s legal counsel, outlining a summary of legal research that would assist OFCCP with responding to an inquiry from [a media entity] about how many cases OFCCP refers to [the Department of Justice] and associated data.’”  “Plaintiffs advance two reasons why these withholdings are improper:  First, they contend that these records contain factual material that is not properly covered by the deliberative process privilege.” “Second, they argue that one redacted passage on [one document] is not predecisional because it describes an action already taken by the Department.”  “After reviewing the redaction in the context of the overall exchange, and according the Department’s declaration and Vaughn index a presumption of good faith, . . . the Court is persuaded that any factual material that the Department redacted was part and parcel of the internal deliberations about how best to respond to the inquiry and that it reflected far more than the collection and reporting of data maintained by the Department regarding past activity.” “Plaintiffs are on no firmer ground, moreover, if their argument is cast as a challenge to the segregability of the records.”  “The Department avers that it ‘[c]onducted a line-by-line review of each page’ and ‘considered whether factual information could be segregated from information subject to the deliberative process privilege and attorney[-]client privilege.’” “When supported by a declaration from an agency official with relevant knowledge, ‘[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material,’ which must be overcome by some ‘quantum of evidence’ by the requester.”  However, regarding one withholding, the court finds that “the declaration the Department proffers in support of its withholdings does not explain how the redacted response to OPA’s question about why the cases were referred relates to the Department's response to [a media entity].”  “The Department might have good reason for withholding the redacted material; that material might constitute predecisional deliberations about how to respond to [the media entity’s] inquiry or how to best enforce the Department’s regulations.”  “But without any evidence – in a declaration or any other materials – addressing how the redacted material contributed to a particular Department decision, the Court cannot determine whether the redacted material falls within the deliberative process privilege.”
  
  The court relates that “Plaintiffs also challenge the Department’s withholding of several records that discuss responses to inquiries from non-profit organizations.”  “Plaintiffs argue that, as a categorical matter, these records ‘do not fall within the scope of the deliberative process privilege [because] they encompass discussions about proposed responses to not-for-profit organizations,’ and ‘while the deliberative process privilege may apply to responses to press inquiries and Congressional inquiries, [the Department] cites to no case in this District . . . holding that the privilege applies to responses to inquiries from non-profits’ . . . .”  “The Court agrees with the Department that the relevant inquiry does not inexorably turn on who asked the question.”  “The test for whether the deliberative process privilege applies, after all, is whether the document reflects predecisional deliberations regarding a matter within the agency’s managerial, organizational, or administrative ambit.”  “The ultimate audience for the agency’s response matters only to the extent it is relevant for establishing whether communication constituted an ‘inter-agency or intra-agency’ one . . . and whether the preceding deliberations concern a matter within the agency’s authority.”  “Applying these principles to the records at issue here, the Court first concludes that the Department has met its burden of showing that the records pertaining to the inquiry from the Institute for Workplace Equality and the National Center for Transgender Equality . . . are privileged.”  “The Department describes these documents . . . as ‘pertain[ing] to a cross-DOL agency collaborative review . . . of an inquiry sent by the Institute for Workplace Equality regarding their interpretation of the highly sensitive and media generating religious directive.’” “The Department further explains that ‘[r]eviewing and responding to this inquiry necessitated fleshing out public misunderstanding or misinterpretation of the religious exemptive directive.’”  “And each of these records are described in the Vaughn index as part of the ‘back-and-forth discussion’ that occurred ‘prior to OFCCP making a decision regarding how to respond to the inquiry’ . . . or as drafts that were subject to ‘comments and edits’ or that provided ‘information’ that was ‘utilized . . . to make a final decision regarding what information should be included in the final response to the organization’ . . . .”  “As a result, these records . . . contain deliberations about ‘how to best promote and ensure the continuation of the [Department’s] policy in the face of intense congressional and public criticisms of the agency’s preferred policy approach,’ and are thus sufficiently predecisional and deliberative to fall within the deliberative process privilege.”
  
  “Plaintiffs’ next set of deliberative-process challenges takes a different tact:  instead of focusing on who asked the question or whether the redacted material reflects facts, Plaintiffs assert that the redacted response itself takes the form of ‘secret law,’ which cannot be properly withheld by the Department under Exemption 5.”  “Plaintiffs contend the redacted material in [certain documents] is just that:  a response to a ‘regional OFCCP employee seeking guidance’ on how the Religious Accommodation Directive applies, and as such, should be disclosed.”  “As far as the Court can discern, this exchange does not reflect the type of ‘back-and-forth’ indicative of deliberation and, instead, seems to offer a definitive answer to the employee’s question about how to apply agency policy in a particular scenario.”  “The principles prohibiting the withholding of ‘working law’ apply not only to ‘formally binding’ documents but also to those that are ‘routinely used and relied upon by field personnel.’”  “An agency cannot withhold the documents it relies on in ‘the discharge of its regulatory duties and its dealings with the public’ merely because the document ‘is not designated as . . . final.’”  “For the reasons explained above, the Court concludes that the Department has failed to satisfy its burden of justifying its decision to withhold portions of [these documents] based on the deliberative process privilege.”  “The Department’s arguments fare better, however, with respect to the remaining documents that Plaintiffs characterize as ‘secret law.’”  “In particular, Plaintiffs contend that [certain documents] contain ‘concrete’ ‘guidance’ provided to contractors on how OFCCP policy would apply in certain scenarios, and thus they too ought to be disclosed.”  “Those records reflect an email exchange in which Department employees discuss how to respond to an inquiry from a federal ‘contractor group’ about the Religious Exemption Directive.”  “Specifically, the contractor group wanted to know whether ‘there are scenarios in which religious organizations will be allowed to discriminate based on any of those characteristics, particularly sexual orientation and/or gender identity, outside of the potential byproduct of the traditional ministerial exception (in which the exception is invoked for someone of a different religion who also happens to be female/minority/ gay/etc.)?’” “Unlike in the records just discussed by the Court, the Department avers that the withheld discussions are predecisional.”  “The Vaughn index describes the responses as ‘preced[ing] the final response’ and as ‘ultimately not [being] adopted because of concerns raised’ by another agency employee.” “The records themselves support this description, as the email exchange appears to conclude with an employee stating that he is ‘drafting’ the response and ‘will circulate something’ later that day.” “In order for a document to constitute ‘secret law,’ it must ‘represent[ ] a conclusive or authoritative statement of [the Department’s] policy,’ . . . or otherwise ‘embody the agency’s effective law and policy[]’ . . . .”  “Here, that cannot be said of the redacted responses, which the Department attests were not adopted and were predecisional.”  “Finally, Plaintiffs challenge two groups of records that they argue contain ‘mere internal reactions’ to a decision already made by the Department, and thus fall beyond the scope of the deliberative process privilege.”  “[A]s the Department explains, the redacted portion ‘pertain[s] to an idea that OFCCP Director sought to explore with the staff,’ . . . regarding the best method for reviewing reasonable accommodation complaints and ensuring that contractors are providing reasonable accommodations when their employees request them,’ . . . .”  “As such, the passage ‘is not merely a recitation of old agency policy or an instruction from [the Director] to OFCCP staff regarding how to process reasonable accommodation claims but is actually part of the back-and-forth consultation between staff as OFCCP establishes which projects it wanted to work on within the given year and what steps needed to be taken to effectively address[] an identified issue.’”  “It therefore falls within the heartland of the deliberative process privilege and is exempt from disclosure.”  “The second set of records . . . contain an email sent from the Director of Enforcement, announcing ‘two new policy directives focused on ensuring equal employment opportunity and protecting Americans’ religious freedom.’”  “The Department maintains that the redacted response is protected by the deliberative process privilege because it ‘formed a part of [the Department’s] discussions regarding implementation and continuation of these sensitive policies.’”  “At least on the present record, the Court is unpersuaded.”  “[T]he unredacted portions of the email suggest that the employee was concerned about the change in policy reflected in the new directive – and, in particular, believed that it was at odds with the goal of protecting covered groups from discrimination – and the Acting Deputy Director of OFCCP sought to explain the shift in policy based on intervening Supreme Court precedents and to assure the employee that the Department remained committed to enforcing the antidiscrimination laws.”  “Seen in that light, it appears that the employee’s email was closer to a ‘reaction’ to a press release than a ‘recommendation’ about how best to preserve or to promote Department’s goals or responsibilities.”  “Nor has the Department offered an alternative explanation of the employee’s purpose in sending the email . . . .”
   
• Exemption 5, Attorney-Client Privilege:  The court notes that “the Department has invoked the attorney-client privilege to withhold portions of several records.”  “As with the deliberative process privilege, the Court groups the records at issue based on the subject matter of those records, and considers each group in turn.”  First, “[t]he Department invokes the attorney-client privilege to withhold portions of an email exchange between OFCCP employees and attorneys within the Department pertaining to an inquiry OFCCP received from Senator Lankford.” “Because Plaintiffs are correct that the Department has failed to maintain the confidentiality of the redacted sentence, the Court agrees that the Department may not withhold that sentence pursuant to the attorney-client privilege and, accordingly, grants summary judgment to the Plaintiffs as to that issue.”  “That leaves a ‘single sentence’ that the Department withheld from these records pursuant to the attorney-client privilege.”  “That redacted sentence appears in an email sent from OFCCP staff to two CRLM attorneys ‘to loop [them] in’ to the internal discussion about how to respond to the Senator’s inquiry.”  “Because the privilege ‘protects not only legal advice, but the confidentially conveyed facts upon which that advice is based’ . . . the central question at hand is whether that email was a request for legal advice.”  “Plaintiffs argue that forwarding an email to two lawyers ‘to loop [them] in’ is not sufficient in and of itself to constitute a request for legal advice but, rather, is ‘the functional equivalent of an “FYI.”’”  “Plaintiffs’ argument proves too much.”  “Although it is true that the D.C. Circuit has embraced the ‘primary purpose’ test for determining what communications are protected by attorney-client privilege, the circuit has made it equally clear that the ‘primary purpose’ test is not a ‘but-for’ inquiry.”  “Rather, the test ‘boils down to [determining] whether obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.’”  “Here, the Department’s declarations demonstrate that much.”  “After explaining that CRLM does not ‘depend on formal requests for legal advice in order to facilitate reviews or discussions about legal issue[s],’ [defendant’s] declaration attests that, upon receiving the redacted email at issue, CRLM ‘immediately began reviewing the legal issue and the matter was forwarded to [the declarant] for further review, . . . evidenc[ing] the fact that CRLM understood that this was a request for legal advice and that it was initiating a legal review of the information that OFCCP provided to it.’”  “This is sufficient for the Court to conclude that the sentence at issue was properly withheld under the attorney-client privilege.”  The court next reviews “‘internal communications between CRLM attorneys and OFCCP personnel regarding various documents that OFCCP requested that CRLM review for legal sufficiency and that were prepared by CRLM per OFCCP’s request’ . . . .”  “[T]he Court can reasonably infer that the comments were provided to guide CRLM as it provided the legal advice that OFCCP sought – namely, that ‘CRLM review [the documents] for legal sufficiency[]’ . . . .”  “As such, a ‘primary purpose’ of the redacted comments was to secure legal advice, and the attorney-client privilege therefore applies.”  Next, the court considers “portions of an email discussion about how to respond to a [news media entity’s] reporter’s request for information about cases referred from OFCCP to the Department of Justice.” The court finds that “the Department does not describe the redacted response as merely summarizing an agency policy or as applying that policy to a hypothetical set of facts.”  “Instead, [defendant] attests that the redacted ‘material consists of legal advice regarding factors OFCCP considers in connection with seeking to disbar a contractor and/or to refer cases to [the Department of Justice],’ including ‘strategies that OFCCP utilizes in order to ensure compliance with its laws, rules, and regulation[s].’”  “The Court thus concludes that the Department permissibly applied the attorney-client privilege to the portions of these documents at issue.” Next the court revies the withholding of “‘[t]he withheld information reflects facts provided to [Department of Labor] attorneys that assisted the attorneys with making a determination regarding whether the relevant information could be disclosed’ by posting a specific chart on the agency’s website.”  “Here, the Department has made it clear that lawyers were involved in the decision whether to disclose this information, but it remains unclear whether that decision depended on legal advice.”  “And the Department’s assertion that the redacted materials ‘reflect internal legal advice provided by attorneys regarding a legal issue that was under review,’ . . . without more, is too conclusory for the Court to assess whether the privilege applies.”  Finally, the court reviews the withholding of “a ‘summary of verbal communication,’ memorialized in email, between a Deputy Director of the Division of Policy and Program Development and a Department attorney regarding strategy for discussing the talking points during a meeting about the Religious Exemption Directive.” “The Department explains that the ‘withheld communication consists of legal advice from the attorney regarding how best to approach the meeting and weighed into OFCCP’s consideration about how to solicit feedback from employees and present this important topic.’”  The court finds that “[t]his description falls short for several reasons.”  “First, as far as the Court can discern, it does not appear that an attorney is a party to the communications, and although a recipient of legal advice can convey that advice to another employee – at least under appropriate circumstances – without waiving the privilege, neither the Vaughn index nor [defendant’s] declaration offers anything more than the conclusory assertion that the email refers to legal advice about the talking points.”  “Moreover, even if those talking points were only distributed within the Department, it is not evident that the requisite confidentiality would have been maintained.”
   
• Exemption 5, Foreseeable Harm and Other Considerations:  The court holds that, “[h]ere, the Department utilized the category-by-category method for addressing the foreseeable-harm requirement.”  “The Department ‘categorized the challenged records into categories of discrete types of information for the purposes of describing the harm that would result if the withheld information was disclosed.’” Regarding the showing in regard to the deliberative process privilege, the court finds that, “[a]s the analysis set forth below demonstrates, the line between an adequate and inadequate explanation is often a fine one, which can turn on the breadth of the materials grouped together in a single category and a commonsense assessment of when the disclosure of deliberative materials is likely to impede future agency deliberations.” “That line-drawing process is made more difficult here, moreover, because the Department’s explanations are, for the most part, cursory.”  “Some of those explanations are barely sufficient, while others just shy of what is required.”  Regarding one category, the court finds that “the Department identifies no foreseeable harm for these records.”  The court then considers a category “‘consist[ing] of OFCCP’s internal deliberation[s] regarding the content of the [Religious Freedom] Directive . . . , as well as deliberation[s] regarding, and initial drafts of, frequently asked questions (FAQs) that OFCCP was considering issuing that would accompany the Directive as further guidance.’”  The court finds that “[h]ere, the Department’s proffer of foreseeable harm is baffling; it argues that release of the documents will ‘chill[ ] necessary collaboration’ that has already occurred – namely, ‘that all issues related to the Directive and guidance were discussed, evaluated, and that the final published guidance on the topic was accurate, defensible, and helpful.’” “Perhaps the Department intends to suggest that disclosure of the deliberative materials would impair a similar deliberative process in the future, but that it is not what it says.” The court then considers the “foreseeable harm with respect to the communications involving the former OFCCP Director and Deputy Director about the Religious Exemption Directive and associated rulemaking.”  The court finds that “[t]he Department’s claim of foreseeable harm for all of the categories implicated by this challenge can be summed up as follows: these documents were part of a decision-making process; the release of predecisional documents involved in that process would undermine effectiveness of that decision-making process in the future because participants in that process would know that their predecisional remarks could be shared with the public and would not be as candid in that decision-making process.”  “This logic stands even if the people whose remarks are being shared are not the same people who will be involved in the decision-making process in the future.” “That said, some of the explanations that the Department has offered with respect to documents in these categories lack sufficient detail to pass muster; an agency is required to explain in a ‘focused and concrete’ manner how the disclosure of the records at issue will ‘actually impede’ future agency deliberations.”  Next, regarding a category which “‘consists of information shared with OFCCP through the [Department of Labor] interagency clearance process by [the Department’s] Office of Legal Counsel,’” the court finds that “[t]he Department has identified ‘the particular type of material at issue,’ . . . – here, feedback from subject matter experts within the agency on draft legislation and QFRs.”  “And it has explained why disclosure of those materials would ‘actually impede those same agency deliberations going forward,’ . . . – by explaining that if these deliberations were to be disclosed, Office of Legal Counsel employees, when sending the records to the subject matter experts, would provide less fulsome context, and that, in turn, the subject matter experts, after receiving those materials, would provide less ‘considered and accurate feedback.’”  “The Department offers a similar explanation with respect to records in Category E.” “That category ‘consists of deliberations regarding how to respond to Questions for the Record (QFRs) sent by Congress to Secretary Acosta that pertained to OFCCP, and initial draft responses by OFCCP to those QFRs.’”  “The Department states that ‘[r]equiring disclosure of the deliberation regarding these responses would . . . chill[ ] [the Department’s] ability to communicate regarding how best to respond to inquiries from Congress.’”  “And, the Department adds, ‘disclosure of initial drafts of QFRs, before they have been reviewed and revised by Departmental leadership, would stymie [the Department’s] process for delegating draft responses to various agencies, resulting in a more cumbersome process and likely resulting in less comprehensive and accurate responses to Congress.’”  “Once again, although a close question, the Court is persuaded that the Department has done more than parroted back the general justification for the privilege; rather, it has explained why disclosure of these specific materials (draft responses to QFRs) would be harmful to the agency’s decision-making process going forward (because the agency would not delegate draft responses to agencies outside of Department leadership).”  “This description of foreseeable harm is therefore adequate.” Next, the court reviews “‘OFCCP and CRLM deliberation[s] regarding the appropriate standard of review for assessing compliance with religious accommodation protections under Executive Order 11246 and the Americans with Disabilities Act, . . . and deliberation[s] over the ways in which OFCCP could assess contractor compliance.’”  The court finds that, “[h]ere, the Department has explained that disclosure of ‘deliberation over the ways in which OFCCP could assess contractor compliance’ would ‘chill[ ] candid written deliberation’ about that topic in the future.”  “The result, the Department maintains, is that its ability to assess compliance would be hindered such that complainants may receive ‘less accurate and potentially confusing information’ on that topic.”  “That is sufficient for these purposes.”  The court then reviews “‘OFCCP’s deliberation[s] in response to questions raised about the scope and applicability of Executive Order 13777, Enforcing the Regulatory Reform Agency, to OFCCP regulations and proposed regulations.’”  The court finds that “[m]ore is needed to establish a ‘link between the specified harm’ – chilled deliberations – ‘and specific information contained in the material withheld’ – how OFCCP should comply with this specific executive order and other executive orders generally.”  Next, the court reviews withholdings in “[i]nternal deliberations within the agency and with legal counsel regarding an inquiry from a media organization into instances in which OFCCP has, or has considered, referring a case under investigation to the Department of Justice (DOJ) for litigation.” The court finds that “[b]ecause the Department has ‘explain[ed] the particular sensitivity of the types of information at issue [and] the role that they play in the relevant agency decisional processes,’ the Court concludes this description of foreseeable harm sufficient.”  The court reviews next “discussions within the Department about how to interact with the public about the Directive and Religious Exemption.”  “Although the Department’s assertions of foreseeable harm must be ‘particular’ to the documents at issue, . . . the Department does not need to provide a document-by-document explanation for the harm it anticipates will result from each document’s release.”  “Rather, all the Department must do is ‘provide context or insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure.’”  “The Department has done as much here:  For [one category], it has explained that the specific decision-making process regarding confidentiality in an [Information Collection Request (“ICR”)] document would be made more difficult by requiring public disclosure, resulting in less comprehensive ICRs and ‘confusion’ in the regulated community.”  “In addition, for [another category], it has explained that a specific decision-making process, regarding how to respond to congressional inquiries, would be hampered in a particular manner, by chilling the sharing of draft responses to congressional inquiries and by ‘making it more difficult for OFCCP to respond to [those] requests in a timely and accurate manner.’”  “The Department has done enough (although just barely enough) to satisfy its burden with respect to these categories of documents.”  The court then reviews the withholding of “‘agency deliberations regarding how to address various questions that came into the Department from news media and contractor representatives regarding the Religious Exemption Directive after the Directive was published.’”  The court finds that “the Department treats all public inquiries regarding published guidance as a single category, including inquiries from ‘contractor representatives.’”  “It fails, moreover, to explain why a public inquiry about published guidance would differ in material respects from an inquiry about Department regulations or policies.”  “As a result, the explanation would seem to apply to an undifferentiated array of public inquiries, merely observing that disclosure would make it ‘more cumbersome’ to respond to public inquiries in the future.”  “The Department, accordingly, has failed to offer an explanation that ‘connect[s] the harms in a[ ] meaningful way to the [specific] information withheld.’”  The court reviews a category that “‘consists of internal deliberations within the agency regarding the content of “rollout materials,”’ such as ‘fact sheets, talking points, press releases, FAQs,’ ‘that were published contemporaneously with the publication of the Religious Exemption Notice of Proposed Rulemaking.’” “The Department explains that ‘[d]isclosure of these non-final draft documents would foreseeably harm OFCCP by chilling the candid and robust interagency review process within [the Department] that takes place prior to the issuance of rollout materials, resulting in a less efficient process and rollout materials that are less comprehensive, accurate, and helpful to the public.’”  “This explanation (barely) suffices.”  “The explanation is focused on a specific class of agency records – ‘fact sheets, talking points, press releases, FAQs, and other internal documents [used] to assist with responding to any questions that may come in from stakeholders or media organizations” when a new policy is announced – and it identifies a specific harm to the deliberative process – ‘chilling the candid and robust interagency review process within [the Department] that takes place prior to issuance of rollout materials,’ thereby impeding the preparation of the most comprehensive, accurate and helpful ‘rollout materials.’” The court then reviews the withholding of “‘written communications from OFCCP Compliance Officers to OFCCP managers, and manager responses, regarding the Religious Exemption Directive soon after its issuance, including questions regarding whether the Religious Exemption Directive would have any impact on a complaint investigation that was in progress.’” The court finds that “[t]his explanation (barely) suffices.”  “Albeit cursory, it offers a specific explanation of why harm would foreseeably result from the disclosure of these materials in a particular circumstance.” “The fact that the explanation focuses on inquiries by compliance officers, who will be responsible for implementing the new policy and conducting investigations, moreover, adds an element of commonsense to the Department’s assessment of foreseeable harm.” The court then reviews “‘correspondence from the National Center for Transgender Equality raising several questions regarding the scope and proper interpretation of the Religious Exemption Directive.’”  “The Department explains that release of these records would ‘foreseeably harm OFCCP by chilling their ability to deliberate in writing and disseminate draft correspondence for comment, thus resulting in a more cumbersome process and less complete, accurate, and robust responses to stakeholders seeking clarification about published Directives.’”  “Given the narrow scope of this category and focused nature of the Department’s assessment – and, in particular, its focus on draft responses that had not yet received legal or policy review and that addressed a contentious topic – the Court concludes the explanation suffices.”
  
  Regarding the foreseeable harm analysis as it pertains to defendant’s attorney-client withholdings, “the Court concludes that the Department has failed to satisfy its foreseeable-harm burden with respect to the attorney-client privilege withholdings.”  “[T]he Court concludes that the Department has failed to do enough to establish a ‘link between the specified harm and [the] specific information contained in the material withheld.’”  “To start, the Department groups together all legal advice, regardless of whether it addressed the implementation of the Religious Exemption Directive, ‘legal issues associated with inquiries from the public [or] Congress,’ and the wording of ‘various [unidentified] documents,’ or the Department’s ‘authority to engage in certain [unidentified] action[ ].’”  “That is open-ended enough, but to make matters worse, the Department adds that this list represents ‘just . . . a few [of the] topics discussed’ in the attorney-client communications.”  “As a result, the reader is left to guess about the nature of at least some – and perhaps many – of the communications at issue.” “Not only is the subject-matter ill-defined, the Department also offers little context regarding the recipients.” “It merely asserts the materials were ‘only shared internally to assist various [Department of Labor] employees with making decisions about how to move forward with various issues.’”  “Even putting these difficulties aside, moreover, the Department’s remaining efforts to demonstrate foreseeable harm fall short.” “It asserts that ‘[r]eleasing these communications would undermine OFCCP’s ability to utilize its legal counsel for assistance in resolving complex problems if such information was routinely disclosed to the public.’”  “That assertion is, of course, boilerplate:  it could be offered in support of any assertion of the attorney-client privilege.”  “But it is worse than that.”  “It appears to acknowledge that an occasional disclosure – one that is not ‘routine’ – might pose no risk at all.”  “And it is undeniably the case that agencies, at times, do release advice rendered within the Executive Branch without damaging consequences.”  “The problem is simply that the Department has attempted too much with too little.”  “It cannot address all attorney-client communications, by identifying “just . . . a few topics,” by referring generally to ‘various [agency] employees,’ and by merely invoking a concern that ‘routine’ disclosure would hinder future attorney-client communications.”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: “The Court . . . concludes that the Department has satisfied its obligation to release that material.” “Here, the Department maintains that it ‘[c]onducted a line-by-line review of each page’ and ‘considered whether factual information could be segregated from information subject to the deliberative process privilege and the attorney[-]client privilege.’”  “The statement, made under the penalty of perjury, supports ‘a presumption that [the agency] complied with [its] obligation to disclose reasonably segregable material,’ which can be overcome only with some ‘quantum of evidence’ presented by the requester.”  “Here, Plaintiffs offer no reason to believe – and no evidence – that the Department failed in its segregability obligations.”  “To the contrary, a review of the unredacted portions of the records that were released confirms that the Department has endeavored to release any segregable, non-exempt material.”