Reporters Committee for Freedom of the Press v. FBI ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2021 Decided July 2, 2021
No. 20-5091
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND
ASSOCIATED PRESS,
APPELLANTS
v.
FEDERAL BUREAU OF INVESTIGATION AND UNITED STATES
DEPARTMENT OF JUSTICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01392)
Katie Townsend argued the cause and filed the briefs for
appellants.
Joseph F. Busa, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Jeffrey Bossert Clark, Acting Assistant Attorney General at the
time the brief was filed, and H. Thomas Byron, III, Attorney.
Before: MILLETT, KATSAS, and WALKER, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: In June 2007, FBI agents
impersonated members of the press so that they could trick an
unknown student who had threatened to bomb his school into
revealing his identity. When news of the FBI’s tactics became
public, media organizations were incensed that their names and
reputations had been used to facilitate such a ruse. The
Reporters Committee for Freedom of the Press and the
Associated Press filed Freedom of Information Act requests
with the FBI seeking more information about the nature and
usage of the FBI’s ploy.
The district court ruled that the government could
withhold from disclosure dozens of the requested documents
under FOIA Exemption 5. More specifically, the court ruled
that the documents are protected by the common law
deliberative process privilege, and that their disclosure would
likely cause harm to the agency’s deliberative processes going
forward.
We affirm in part, reverse in part, and dismiss in part. The
government properly withheld the emails in which FBI
leadership deliberated about appropriate responses to media
and legislative pressure to alter the FBI’s undercover tactics, as
well as internal conversations about the implications of
changing their undercover practices going forward. But the
government did not satisfy its burden to show either that the
other documents at issue in this case were deliberative or that
their disclosure would cause foreseeable harm.
3
I
A
Congress enacted the Freedom of Information Act in 1976
to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny[.]” Department of the Air
Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted).
The law generally commands that government agencies, “upon
any request for records * * * shall make the records promptly
available to any person.” 5 U.S.C. § 552(a)(3).
In enacting FOIA, Congress provided that agencies may
only withhold information that falls within one of the Act’s
nine enumerated exemptions from disclosure. 5 U.S.C.
§ 552(b); see also Rose, 425 U.S. at 361. Those “limited
exemptions do not obscure the basic policy that disclosure, not
secrecy, is the dominant objective of the Act.” Rose, 425 U.S.
at 361. The burden of proving the applicability of an
exemption falls on the agency. Petroleum Info. Corp. v.
Department of the Interior, 976 F.2d 1429, 1433 (D.C. Cir.
1992) (quoting 5 U.S.C. § 552(a)(4)(B)).
This case concerns Exemption 5, which states that
agencies need not disclose “inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with the agency[.]” 5
U.S.C. § 552(b)(5). But the Exemption’s protection of
documents covered by “the deliberative process privilege shall
not apply to records created 25 years or more before the date
on which the records were requested[.]” Id. As the latter
language indicates, Exemption 5 includes the so-called
“deliberative process privilege,” which shields “documents
reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.” NLRB v.
4
Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (internal
quotation marks and citation omitted); see also United States
Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785
(2021); Coastal States Gas Corp. v. Department of Energy, 617
F.2d 854, 862, 866–869 (D.C. Cir. 1980).
In 2016, Congress enacted the FOIA Improvement Act,
Pub. L. No. 114-185, 130 Stat. 538 (2016). That legislation
implemented several changes to FOIA that were designed to
increase the availability of government records to the public.
H.R. REP. NO. 391, 114th Cong., 2d Sess. 1, 7–8 (2016); S. REP.
NO. 4, 114th Cong., 1st Sess. 2–5 (2015). As relevant here,
Congress mandated that agencies may only withhold
information under a FOIA exemption if the agency “reasonably
foresees that disclosure would harm an interest protected by an
exemption” or if “disclosure is prohibited by law[.]” FOIA
Improvement Act § 2, 130 Stat. at 539 (codified at 5 U.S.C.
§ 552(a)(8)(A)(i)). This rule applies only to requests for
records under FOIA made after June 30, 2016. Id. § 6, 130
Stat. at 544–545.
B
In June 2007, law enforcement investigated a series of
emailed bomb threats targeted at Timberline High School in
Lacey, Washington. The sender was anonymous, and when
local officials were unable to identify the culprit, they called in
the FBI.
According to contemporaneous reporting, the FBI sent the
suspect a “secret surveillance program” that was “designed to
surreptitiously monitor” his electronic activities by recording
his device’s IP address, running programs, operating system,
logged-in user name, and last visited URL. Kevin Poulsen,
FBI’s Secret Spyware Tracks Down Teen Who Made Bomb
Threats, WIRED (July 10, 2007), https://www.wired.com/2007/
5
07/fbi-spyware/ (last accessed June 29, 2021). The program
then transmitted all of that information to the government. Id.
With that information in hand, law enforcement was able to
identify the suspect, a 15-year-old student at the school.
It was not until more than seven years later, on October
27, 2014, that the public learned how the FBI had enticed the
suspect to load the monitoring program onto his computer. FBI
agents planned a simple appeal to ego by “flatter[ing] the
culprit into clicking a link to what appeared to be press
coverage suggesting that he had outsmarted the authorities[.]”
Reporters Comm. for Freedom of the Press v. FBI (Reporters
Comm. II), 877 F.3d 399, 401 (D.C. Cir. 2017). That click
would then trigger delivery of the specialized software that
revealed his computer’s location. Id.To put that plan in motion, an FBI Special Agent contacted
an anonymous social-media account that was associated with
the threats. The Agent “identified himself as an Associated
Press ‘Staff Publisher,’ and requested input on a draft article”
that was made to appear as though it would be published on the
Seattle Times’ website and that was “accessible through an
emailed link.” Reporters Comm. II, 877 F.3d at 401. The ruse
worked. The suspect “took the bait, clicking the link and
unwittingly downloading the malware.” Id. “Within hours, the
FBI had its man.” Id.
Seven years went by before an American Civil Liberties
Union technologist spotted a reference to the FBI’s
methodology in some FBI documents released in response to
an earlier FOIA request. Reporters Comm. II, 877 F.3d at 401.
In October 2014, the ACLU technologist shared his discovery
over Twitter, and “within days, news of the media
impersonation tactics employed at Timberline prompted
headlines nationwide.” Id.
6
Forceful criticism of the tactic quickly followed. The
Seattle Times’ editor said: “We are outraged that the FBI, with
the apparent assistance of the U.S. Attorney’s Office,
misappropriated the name of The Seattle Times to secretly
install spyware on the computer of a crime suspect[,]” and
“[t]he FBI’s actions, taken without our knowledge, traded on
our reputation and put it at peril.” J.A. 343. The Associated
Press’s director of media relations said: “This ploy violated
AP’s name and undermined AP’s credibility.” J.A. 344. The
New York Times editorial board wrote that the Associated Press
was “rightly outraged” by what it called the “deceptive tactics
used in * * * Seattle,” which it said “risk[ed] opening the door
to constitutional abuses on a much wider scale” unless the
government or the courts acted quickly to end the practice.
Editorial, Deceptions of the F.B.I., N.Y. TIMES (Oct. 31, 2014),
https://www.nytimes.com/2014/11/01/opinion/deceptions-of-
the-fbi.html (last accessed June 29, 2021).
Members of Congress added their own expressions of
concern. See Letter from Sen. Patrick Leahy, Chairman,
Senate Judiciary Comm., to Attorney Gen. Eric Holder (Oct.
30, 2014) at 1, Reporters Comm. for Freedom of Press v. FBI,
No. 15-cv-1392 (D.D.C. April 25, 2016), ECF No. 19-14
(“Leahy Letter”) (“When law enforcement appropriates the
identity of legitimate media institutions, it not only raises
questions of copyright and trademark infringement but also
potentially undermines the integrity and credibility of an
independent press.”); see also Letter from Sen. Chuck
Grassley, Chairman, Senate Judiciary Comm., to James
Comey, Dir., FBI (June 12, 2015), J.A. 358–359 (“Grassley
Letter”) (stating that the FBI’s tactic “raise[s] important
issues”).
On November 6, 2014, the New York Times published a
letter to the editor from then–FBI Director James Comey in
7
which he defended the Bureau’s policy against that widespread
criticism.
In September 2016, the Department of Justice’s Inspector
General released a report entitled “A Review of the FBI’s
Impersonation of a Journalist in a Criminal Investigation.”
That report revealed that, in June 2016, the FBI “adopted a new
interim policy * * * that provides guidance to FBI employees
regarding their impersonation of members of the news media
during undercover activity or an undercover operation,” and
prohibits such conduct unless it is first reviewed and approved
by high-ranking FBI officials. J.A. 365.
C
On October 31, 2014, the Reporters Committee for the
Freedom of the Press submitted two FOIA requests to the FBI.
The first request sought “all records concerning the FBI’s
utilization of links to what are or appear to be news media
articles or news media websites to install data extraction
software, remote access search and surveillance tools, or the
Computer and Internet Protocol Address Verifier[.]” J.A. 34.
The second requested copies of “all records concerning the
FBI’s guidelines and policies concerning undercover
operations or activities in which a person may act as a member
of the news media[.]” J.A. 39, 450. Days later, the Associated
Press submitted a similar FOIA request to the FBI.
The FBI said in response to the Reporters Committee’s
first request that it had not found any relevant records, and
offered no response at all to the other two FOIA requests. The
Reporters Committee and the Associated Press (collectively,
“News Organizations”) then initiated a lawsuit against the FBI
and the Department of Justice. The complaint alleged, among
other things, that the FBI had conducted an inadequate search
for responsive records and that it must be wrongly withholding
8
responsive documents. Reporters Comm. II, 877 F.3d at 401;
see also J.A. 11–12, 451. The FBI eventually located 267
pages of records during the course of the litigation before the
district court, releasing 83 pages in full and withholding the
remainder in full or in part. The News Organizations
maintained that the FBI’s search had been inadequate and
argued that its withholdings were unjustified.
The district court granted summary judgment for the
government, holding that the FBI’s search was adequate, that
the FBI had justified its withholdings, and that the FBI had
reasonably segregated information that may be disclosed. See
generally Reporters Comm. for Freedom of the Press v. FBI
(Reporters Comm. I), 236 F. Supp. 3d 268 (D.D.C. 2017).
D
The News Organizations appealed. On December 5, 2017,
while that appeal was pending, the Reporters Committee
submitted another FOIA request to the FBI, seeking six
categories of records. The first two categories in that request
were identical to its prior request except that the Reporters
Committee updated the request to include records from after
November 1, 2014, which was the FBI’s previous cutoff date
for its record search. J.A. 452. The four other categories
related to the September 2016 report issued by the Justice
Department’s Office of Inspector General addressing the FBI’s
impersonation of media members during the Timberline
investigation.
When the FBI failed to provide a sufficient response or to
produce any documents within the statutory time limit, see 5
U.S.C. § 552(a)(6)(A)(i), the Committee filed another lawsuit,
which the district court treated as a related case.
9
Meanwhile, this court issued a decision reversing and
remanding the district court’s grant of summary judgment for
the government. We ruled that the FBI’s search for documents
was inadequate because it had not searched for records in
certain offices that, by the FBI’s own past admission, were
“reasonably likely” to possess relevant materials. Reporters
Comm. II, 877 F.3d at 406. Nor had the FBI searched the
Director’s Office for records despite “unmistakabl[e]”
evidence that that Office was “intimately involved” in
coordinating the response to the unfolding controversy. Id. at
407.
After our decision in Reporters Committee II, the FBI
began releasing additional records in response to both the 2014
and 2017 requests. The FBI released 328 pages (in full or in
part) and withheld the remaining 283 pages in full. Of those
283 pages, the FBI withheld 201 of them as duplicates of
already released documents. The government claimed that the
remaining 82 pages were exempt from disclosure in full
pursuant to FOIA Exemptions 1, 3, 5, 6, 7(C), and 7(E), 5
U.S.C. § 552(b)(1), (3), (5), (6), 7(C) & 7(E). 1
The parties cross-moved for summary judgment on the
validity of those exemptions. The FBI submitted two
declarations in support of its withholdings from David Hardy,
the FBI’s chief FOIA response officer. The Justice Department
submitted a declaration from Deborah Waller, the FOIA officer
1
Exemption 1 protects classified information. Exemption 3
protects information for which other federal statutes prohibit release.
Exemptions 6 and 7(C) protect information that, respectively, would
or could result in an unwarranted invasion of personal privacy. And
Exemption 7(E) protects techniques or procedures used in law
enforcement investigations or prosecutions.
10
for the Office of the Inspector General, in support of its claimed
exemptions involving the Inspector General report.
As relevant here, the News Organizations argued that the
government failed to justify its invocation of the deliberative
process privilege as to six categories of withheld documents.
Specifically, the News Organizations challenged the
withholding of (1) an email chain between FBI personnel and
Director Comey in which they discussed revisions to a draft of
his New York Times letter to the editor defending the media-
impersonation policy; (2) drafts of the September 2016
Inspector General Report; (3) the FBI’s “Factual Accuracy
Comments” on the Inspector General’s draft report; (4) drafts
of PowerPoint slides allegedly concerning undercover
operations; (5) the Inspector General’s cover memo
accompanying the submission of the final Inspector General
Report to Director Comey; and (6) emails between FBI
attorneys and other FBI personnel discussing
recommendations for policy changes in the approval process
for undercover investigations involving impersonation of the
news media.
The district court granted summary judgment for both the
FBI and the Justice Department, upholding all of the
withholdings. The News Organizations timely appealed the
district court’s determination that the six categories of
documents outlined above were exempt from release because
they were protected by the deliberative process privilege. They
similarly appealed the district court’s determination that
release of those documents would foreseeably harm the
interests protected by the privilege.
II
The district court had subject-matter jurisdiction to hear
this case under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331.
11
Our jurisdiction to review the district court’s decision rests on
28 U.S.C. § 1291.
We review de novo a district court’s decision on summary
judgment in a FOIA case. Hall & Assocs. v. EPA, 956 F.3d
621, 629 (D.C. Cir. 2020). Because the government bears the
burden of establishing that a FOIA exemption applies, we may
affirm only if we detect no genuine issue of material fact as to
an exemption’s applicability. Pavement Coatings Tech.
Council v. United States Geological Surv., 995 F.3d 1014, 1020
(D.C. Cir. 2021). In ruling on summary judgment, courts may
rely on non-conclusory agency affidavits demonstrating the
basis for withholding if they are not contradicted by contrary
evidence in the record or by evidence of the agency’s bad faith.
Shapiro v. Department of Justice, 893 F.3d 796, 799 (D.C. Cir.
2018).
III
To carry its burden at summary judgment, the government
must demonstrate that (A) the materials at issue are covered by
the deliberative process privilege, and (B) it is reasonably
foreseeable that release of those materials would cause harm to
an interest protected by that privilege. Machado Amadis v.
Department of State, 971 F.3d 364, 370 (D.C. Cir. 2020); see
5 U.S.C. § 552(a)(8)(A)(i)(I).
A
The deliberative process privilege “covers ‘documents
reflecting advisory opinions, recommendations, and
deliberations that are part of a process by which [g]overnment
decisions and policies are formulated[.]’” Department of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1,
8 (2001) (citing Sears, 421 U.S. at 150). The privilege assures
agency staff that they can provide their candid opinions and
12
recommendations to decisionmakers without fear of ridicule or
reprisal. Coastal States, 617 F.2d at 866. It also protects
policymakers from premature disclosure of their proposals
before they have been completed or adopted. Id. And it guards
against “confusing the issues and misleading the public by
dissemination of documents suggesting reasons and rationales
for a course of action which were not in fact the ultimate
reasons for the agency’s action.” Id.All of this is in service of the same goal, which is to
“prevent injury to the quality of agency decisions.” Sears, 421
U.S. at 151; see also Fish & Wildlife Serv., 141 S. Ct. at 785.
The privilege “reflects the commonsense notion that agencies
craft better rules when their employees can spell out in writing
the pitfalls as well as strengths of policy options,” as well as an
“understanding that employees would be chilled from such
rigorous deliberation if they feared it might become public.”
Judicial Watch, Inc. v. Department of Defense, 847 F.3d 735,
739 (D.C. Cir. 2017).
The privilege may only be invoked for documents that are
both predecisional and deliberative. Fish & Wildlife Serv., 141
S. Ct. at 785–786. A document is predecisional if it was
“generated before the agency’s final decision on the matter[.]”
Id. at 786; see Coastal States, 617 F.2d at 866 . A document is
deliberative when it is “prepared to help the agency formulate
its position[,]” Fish & Wildlife Serv., 141 S. Ct. at 786, and it
“reflects the give-and-take of the consultative process[,]”
Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141,
151 (D.C. Cir. 2006) (quoting Coastal States, 617 F.2d at 866).
The News Organizations argue that the district court erred
in finding that the deliberative process privilege shields six
categories of documents from disclosure. We agree in part.
The government properly invoked the deliberative process
13
privilege over both the Comey emails and the emails between
FBI personnel and attorneys discussing possible changes to
their media impersonation policy, as well as over drafts of the
Inspector General report. But the government failed to justify
the privilege’s application to withhold the Factual Accuracy
Comments in full, without undertaking a segregability analysis.
Nor was it entitled to withhold the draft PowerPoint slides. The
dispute over the Inspector General’s cover letter is moot.
1
The 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.
We hold that, under the circumstances, those communications
fall within the deliberative process privilege.
a
To qualify for protection under the deliberative process
privilege, documents must be “predecisional,” meaning that
they generally must have been created “during an agency’s
deliberations about a policy, as opposed to documents that
embody or explain a policy that the agency adopts.” Fish &
Wildlife Serv., 141 S. Ct. at 783.
Upon a proper showing, the privilege may extend to
internal deliberations over how best to promote or preserve an
existing policy in the midst of public debate over whether the
government should have such a policy. So it is here.
Relevant here, in Access Reports v. Department of Justice,
926 F.2d 1192 (D.C. Cir. 1991), the Justice Department had
proposed amendments to FOIA and prepared an internal report
14
to help officials rebut criticisms levied at those amendments as
the Department sought to push them through Congress, id. at
1193. We held that the internal report fell within the scope of
Exemption 5, even though the agency “could not ‘pinpoint’ a
later decision to which the document contributed.” Id. at 1193,
1196. That is because the materials contributed to “the
[agency]’s study of how to shepherd [its] bill through
Congress” under significant public criticism, and that itself was
a part of the policymaking process. Id. at 1196. On that basis,
the deliberative process privilege shielded from disclosure
those internal deliberations about whether to adopt and how to
promote and defend a particular policy desired by the agency.
Id. at 1196–1197.
Likewise, in Krikorian v. Department of State, 984 F.2d
461 (D.C. Cir. 1993), the State Department had published an
article that reversed the policy of the United States government
concerning the Armenian genocide, id. at 463. The State
Department later retracted that statement. Id. We held that
drafts of replies to public inquiries about the published article
were shielded from disclosure as “advisory opinions that are
important to the deliberative process.” Id. at 466. Because the
article’s publication unsettled the policy landscape, those draft
documents represented an important component of the
agency’s ongoing internal work to settle on a substantive policy
approach, which is distinct from documents that would simply
describe an already-adopted policy. See Fish & Wildlife Serv.,
141 S. Ct. at 786 (“What matters, then, is not whether a
document is last in line, but whether it communicates a policy
on which the agency has settled.”).
The discussions regarding proposed revisions to Director
Comey’s letter to the editor in this case are of a piece with the
documents in Access Reports and Krikorian. The FBI’s high-
ranking officials were debating how to formulate the most
15
appropriate and effective response to an ongoing national
controversy that threatened to eliminate or destabilize its
existing policy practice. The record demonstrates that the FBI
was under significant pressure from Congress (including the
chairman of the Senate committee responsible for the Bureau’s
oversight), the media, and the public to change its policies
relating to certain types of undercover operations. Leahy
Letter, supra, at 1–2; J.A. 354–355 (New York Times editorial
calling for FBI’s tactics to be “prohibited by the agency or
blocked by courts”); see also Grassley Letter, supra, at 1–4. As
the ground was shifting under the Bureau’s feet, its leadership
generated these pre-publication deliberations not so much to
explain the agency’s already-decided policy, but to figure out
how to best promote and ensure the continuation of the FBI’s
policy in the face of intense congressional and public criticisms
of the agency’s preferred policy approach. The documents
equally reflected ongoing work to preserve through unsettled
waters and at an unpredictable time an at-risk policy that the
agency hoped to retain. See Fish & Wildlife Serv., 141 S. Ct.
at 786.
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, see National Sec. Archive v. CIA, 752 F.3d 460, 463
(D.C. Cir. 2014) (Kavanaugh, J.), 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.
16
In that way, the emails at issue here are quite distinct from
documents that discuss, describe, or defend an already-
determined agency policy. See Fish & Wildlife Serv., 141
S. Ct. at 786 (Documents are not predecisional where they
“communicate[] the agency’s settled position[.]”). Those types
of descriptive discussions do not advance the purposes of the
deliberative process privilege—to allow agency employees to
have the candid discussions necessary to make the best possible
policy decisions in service of the public. The emails at issue
here, by contrast, documented ongoing internal debates and
deliberations about whether and how best to endorse and to
advocate for the survival of a substantive policy priority at a
time of uncertainty as to its continuation due to significant
external pressure to change course. For that reason, the emails
qualify as predecisional.
b
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. See, e.g., National Sec. Archive, 752 F.3d at
462. The News Organizations, in fact, do not dispute the
documents’ deliberative character.
Instead, 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.
That 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[.]”
Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975); see
17
also Machado Amadis, 971 F.3d at 370 (“[R]ecommendations
from subordinates to superiors” are “the core of the
deliberative-process privilege[.]”).
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.” Machado Amadis, 971 F.3d at 370
(quoting Department of Defense, 847 F.3d at 739); see also
Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865,
874 (D.C. Cir. 2010); Food & Drug Admin., 449 F.3d at 151;
Coastal States, 617 F.2d at 866. 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. See Coastal States, 617 F.2d at 868 (“[A] document
from a subordinate to a superior official is more likely to be
predecisional, while a document moving in the opposite
direction is more likely to contain instructions to staff
explaining the reasons for a decision already made.”); see also
Brinton v. Department of State, 636 F.2d 600, 605 (D.C. Cir.
1980) (“[F]inal opinions” not subject to Exemption 5
“typically flow from a superior with policy-making authority
to a subordinate who carries out the policy.”).
The News Organizations try a different tack in their reply
brief, contending that the government failed to articulate how
the contents of each specific withheld email reflect its
deliberative nature. That argument is forfeited because it was
not raised in the opening brief. Al-Tamimi v. Adelson, 916 F.3d
1, 6 (D.C. Cir. 2019).
18
2
The deliberative process privilege also applies to the pre-
publication drafts of the Inspector General’s report.
The 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. See Fish & Wildlife Serv., 141
S. Ct. at 786. We have similarly held that the deliberative
process privilege applies to draft agency histories because they
examine past agency actions, analyze them, and make
recommendations for policy changes going forward. See, e.g.,
National Sec. Archive, 752 F.3d at 463; Dudman Commc’ns
Corp. v. Department of the Air Force, 815 F.2d 1565, 1568–
1569 (D.C. Cir. 1987); Russell v. Department of the Air Force,
682 F.2d 1045, 1048–1049 (D.C. Cir. 1982). Inspector General
reports serve a similar function by reviewing past agency
actions, analyzing their consequences, and proposing changes
in agency policy.
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. Russell, 682
F.2d at 1049 (citation omitted).
19
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. Sears, 421 U.S. at
161 (emphasis added); see also Electronic Frontier Found. v.
Department of Justice, 739 F.3d 1, 10–11 (D.C. Cir. 2014);
Access Reports, 926 F.2d at 1197.
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.
3
The 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. See
generally Electronic Frontier Found., 739 F.3d at 8–9
(advisory opinion from Justice Department’s Office of Legal
Counsel to FBI in assistance with formulating response to
criticism of FBI’s intelligence gathering methods was
protected by deliberative process privilege); Formaldehyde
Inst. v. Department of Health & Hum. Servs., 889 F.2d 1118,
1120 (D.C. Cir. 1989) (compiled comments from non-
governmental academic journal reviewers on draft CDC report
were predecisional).
20
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.
For starters, “[u]nder the deliberative process privilege,
factual information generally must be disclosed[.]” Petroleum
Info. Corp., 976 F.2d at 1434. While the fact/opinion
distinction is not a wooden rule, it is a “rough guide” for sifting
out non-deliberative factual content from deliberative policy
judgments. Access Reports, 926 F.2d at 1195; see also EPA v.
Mink, 410 U.S. 73, 87–88 (1973) (Deliberative process
privilege does not shield “purely factual material contained in
deliberative memoranda and severable from its context[.]”);
see also Office of Mgmt. & Budget, 598 F.3d at 876(“[A]gencies must disclose those portions of predecisional and
deliberative documents that contain factual information that
does not ‘inevitably reveal the government’s deliberations.’”)
(quoting In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir.
1997)).
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:
21
J.A. 485. 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.” See Dudman, 815 F.2d at 1568
(citing Russell, 682 F.2d at 1048–1049). 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
22
engage did not call for judgment or the candid exchange of
ideas.
Given the focused content and narrow function of the
Factual Accuracy Comments and the absence in this record of
any apparent editorial or contextual input from the FBI, the
government has not shown how disclosure of these factual edits
would discourage the candid discussion of policy matters
within the agency. See Access Reports, 926 F.2d at 1195.
Instead, the Factual Accuracy Comments simply allowed the
FBI to alert the Inspector General “if any statements in the draft
were incorrect, incomplete, or divulged sensitive information.”
J.A. 445 (Fourth Decl. of David M. Hardy). That by itself does
not cross the line into deliberative material.
4
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. Oral
Arg. Tr. at 30:1–5; id. at 31:8–10; see J.A. 500–513 (final
version of the PowerPoint). A document that serves only to
explain an existing agency policy “cannot be considered
deliberative.” Office of Mgmt. & Budget, 598 F.3d at 876.
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.” Gov’t Br. 29 (quoting National Sec. Archive, 752
F.3d at 463). 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. See Arthur Andersen & Co. v. IRS, 679
F.2d 254, 257–258 (D.C. Cir. 1982) (“Even if a document is a
23
‘draft of what will become a final document,’ the court must
also ascertain ‘whether the document is deliberative in
nature.’”) (quoting Coastal States, 617 F.2d at 866). For
example, in National Security Archive, on which the
government relies, the draft document at issue pertained to
crafting an agency history—an authoring exercise that we have
recognized as deliberative and editorial, and so subject to
Exemption 5. 752 F.3d at 463; see also Russell, 682 F.2d at1048–1049; Dudman, 815 F.2d at 1568–1569. The
deliberative process privilege could similarly apply to
proposed materials that die on the vine like draft speeches for
policymakers that are never given, or draft regulations that
never see the light of day. National Sec. Archive, 752 F.3d at
463. Those types of documents discuss and debate proposed
agency policies, positions, and actions.
That is where the presentations at issue here come up
short. The government has failed to identify any deliberative
component to the draft PowerPoints. They simply describe
already-made and in-place policy choices. See Oral Arg. Tr. at
31:8–10 (Q: Presentation was “about existing policy, correct?”
Government Counsel: “Correct, your honor.”). Exemption 5
offers such documents no harbor.
5
The News Organizations appealed the government’s
withholding of portions of a cover letter from the Inspector
General that accompanied transmission of his final report to
Director Comey. The government released the full and
unredacted version of that letter during the pendency of this
appeal. So this issue is moot. Bayala v. Department of
Homeland Sec., Off. of the Gen. Counsel, 827 F.3d 31, 34 (D.C.
Cir. 2016) (“[W]here the government has released * * * a
portion of the requested documents, the case is moot * * * with
24
regard to those documents.”); see also Williams & Connolly v.
SEC, 662 F.3d 1240, 1243–1244 (D.C. Cir. 2011).
The News Organizations maintain that the FBI “continues
to withhold portions of similar records,” and that they want to
challenge the propriety of those withholdings. News Orgs.
Reply Br. 17 n.4 (citing J.A. 490–492). The problem is that the
News Organizations failed to make any argument about those
other documents in their opening brief. So those objections are
forfeited. Al-Tamimi, 916 F.3d at 6. We could hardly rule
against the government on an issue it never had a chance to
brief.
6
The 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. These emails fall within the deliberative process
privilege.
The FBI’s declarant explained that these emails were
predecisional because they preceded the new interim policy on
impersonation of media members, and they were deliberative
because they reflected “internal advice and recommendations”
regarding those policy changes and their procedural
incorporation into ongoing and future operations. J.A. 250–
251. 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. See Coastal
States, 617 F.2d at 866; see also Lewis v. Department of the
Treasury, --- F. App’x ---, No. 20-5120, 2021 WL 1432655, at
*3 (D.C. Cir. March 23, 2021).
The News Organizations mount only a limited challenge
to the withholding of these documents, arguing that the
25
government has insufficiently explained their deliberative
nature and failed to identify the decisionmaking authority
vested in their authors. See Arthur Andersen, 679 F.2d at 258(“[T]he agency must present to the court the ‘function and
significance of the document[s] in the agency’s
decisionmaking process,’ [and] ‘the nature of the
decisionmaking authority vested in the office or person issuing
the disputed document[s][.]’”) (formatting modified) (quoting
Taxation with Representation Fund v. IRS, 646 F.2d 666, 678–
679 (D.C. Cir. 1981).
We disagree. The primary Hardy declaration, in
combination with produced portions of the redacted emails,
adequately demonstrate that the documents constituted candid
advice about whether and how FBI policies should or should
not change. See Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir.
2007) (agency affidavits and unredacted portions of documents
work “in tandem” to illuminate the privileged nature of
redacted materials). A significant portion of one of the
redacted emails, for instance, was identified by its own author
as a “recommendation” relating to the FBI’s procedures
concerning undercover operations and the news media.
J.A. 404–405.
And the decisionmaking authority of the persons at issue
is evident from the record. One sample email exchange took
place between Director Comey and his chief of staff. The
“recommendation” email referenced above was sent by the
FBI’s Section Chief for undercover operations.
To the extent that the News Organizations suggest that the
district court erred in relying on a representative sample or
categorical description of the documents at issue, they are
mistaken. Such “categorization and repetition provide efficient
vehicles” for reviewing an agency’s withholding decisions
26
when they “implicate the same exemption for similar reasons.”
Food & Drug Admin., 449 F.3d at 147. Courts, in fact,
routinely review sample documents to determine whether
exemptions have been appropriately claimed. See, e.g.,
Vaughn, 523 F.2d at 1143–1145 (evaluating sample reports to
determine whether they are part of a deliberative process);
Hunton & Williams LLP v. EPA, 346 F. Supp. 3d 61, 74
(D.D.C. 2018).
Here, the government has submitted an appropriately
descriptive affidavit and exemplar documents in which the
redactions match the justifications provided in that affidavit.
That provides a sufficient basis for sustaining the government’s
invocation of Exemption 5.
B
Finding the deliberative process privilege applicable to
some of the withheld materials does not end the matter. Under
the FOIA Improvement Act of 2016, the government may not
withhold even those privileged materials unless it also
“reasonably foresees that disclosure would harm an interest
protected by” the FOIA exemption. 5 U.S.C.
§ 552(a)(8)(A)(i)(I).
That showing has been met for the Comey emails and the
emails among FBI employees and attorneys concerning
potential changes to the undercover impersonation policy. But
the government’s showing of harm for the other documents on
appeal falls short—that is, the draft Inspector General’s report,
the Factual Accuracy Comments, and the draft PowerPoint
slides—and so on this record they may not be withheld.
27
1
Congress adopted the FOIA Improvement Act in part out
of “concerns that some agencies [were] overusing FOIA
exemptions that allow, but do not require, information to be
withheld from disclosure.” S. REP. NO. 4, 114th Cong., 1st
Sess. 2 (2015); see also H.R. REP. NO. 391, 114th Cong., 2d
Sess. 9 (2016) (“[T]here is concern that agencies are overusing
these exemptions to protect records that should be releasable
under the law.”). Congress was particularly concerned with
increasing agency overuse and abuse of Exemption 5 and the
deliberative process privilege. H.R. REP. NO. 391, at 9–10
(“The deliberative process privilege is the most used privilege
and the source of the most concern regarding overuse.”); see
also S. REP. NO. 4, at 3.
Congress added the distinct foreseeable harm requirement
to foreclose the withholding of material unless the agency can
“articulate both the nature of the harm [from release] and the
link between the specified harm and specific information
contained in the material withheld.” H.R. REP. NO. 391, at 9.2
Agencies cannot rely on “mere ‘speculative or abstract fears,’
or fear of embarrassment” to withhold information. S. REP.
NO. 4, at 8. Nor may the government meet its burden with
“generalized assertions[.]” Machado Amadis, 971 F.3d at 371.
In that way, the foreseeable harm requirement “impose[s]
an independent and meaningful burden on agencies.” Center
2
It is apparent from the statutory text alone that the
government’s successful invocation of a FOIA exemption cannot
justify its withholding of exempt material without a more
particularized inquiry into what sort of foreseeable harm would result
from the material’s release. See 5 U.S.C. § 552(a)(8)(A)(i)(I). The
detailed legislative history of the provision underscores the type of
showing that Congress now requires of federal agencies.
28
for Investigative Reporting v. United States Customs & Border
Prot., 436 F. Supp. 3d 90, 106 (D.D.C. 2019) (citation
omitted). While agencies may sometimes satisfy that burden
on a category-by-category basis rather than a document-by-
document basis—“that is, group together like records” and
explain the harm that would result from release of each
group—the basis and likelihood of that harm must be
independently demonstrated for each category. Rosenberg v.
Department of Defense (Rosenberg I), 342 F. Supp. 3d 62, 78
(D.D.C. 2018).
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.
Machado Amadis, 971 F.3d at 371. A “perfunctory state[ment]
that disclosure of all the withheld information—regardless of
category or substance—would jeopardize the free exchange of
information between senior leaders within and outside of the
[agency]” will not suffice. Rosenberg I, 342 F. Supp. 3d at 79
(formatting modified); see also Center for Investigative
Reporting, 436 F. Supp. 3d at 106 (rejecting “general
explanations and boiler plate language” regarding foreseeable
harm) (internal quotation marks and citation omitted). Instead,
what is needed is a focused and concrete demonstration of why
disclosure of the particular type of material at issue will, in the
specific context of the agency action at issue, actually impede
those same agency deliberations going forward. Naturally, this
inquiry is context specific. See Rosenberg v. Department of
Defense (Rosenberg II), 442 F. Supp. 3d 240, 259 (D.D.C.
2020); Center for Investigative Reporting, 436 F. Supp. 3d at
107; Rosenberg I, 342 F. Supp. 3d at 79.
29
2
Under that test, the government failed to demonstrate
foreseeable harm from the release of the draft Inspector
General report. Neither did it sufficiently show what harm
would result from release of the Factual Accuracy Comments
or draft PowerPoint slides, making their withholding doubly
erroneous. But the record shows that the FBI’s decisionmaking
process would likely suffer harm from the release of the two
groups of emails.
a
The government broadly failed to “specifically focus[]” its
foreseeable harm demonstration “on the information at issue in
[the documents] under review,” Machado Amadis, 971 F.3d at
371 (quotation marks omitted). Instead, it submitted a series of
boilerplate and generic assertions that release of any
deliberative material would necessarily chill internal
discussions.
The FBI’s primary declaration on foreseeable harm may
generously be described as scanty. The 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.” Gov’t Br. 38. 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. See J.A. 248 (“Disclosure
of [material containing or prepared in connection with the
formulation of opinions, advice, evaluations, deliberations,
policies, proposals, conclusions, or recommendations] would
have an inhibiting effect upon agency decisionmaking and the
development of policy because it would chill full and frank
discussions between agency personnel and decision makers
30
regarding a decision. If agency personnel know that their
preliminary impressions, opinions, evaluations, or comments
would be released to the general public, they would be less
candid and more circumspect in expressing their thoughts,
which would impede the fulsome discussion of issues
necessary to reach a well-reasoned decision.”).
The FBI’s supplemental declaration, which solely
concerns the Factual Accuracy Comments, also falls far short.
According to Hardy, 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.” J.A. 446. But the declaration never
explains how the purely factual material contained in those
Factual Accuracy Comments constituted “unrefined opinions,”
see supra Part III.A.3, 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. See 5 U.S.C. app. § 6(c)(1).
For its part, the Justice Department submitted the Waller
declaration in an effort to justify the withholding of its draft
Inspector General reports. But that document suffers from the
same flaw. Its cookie-cutter formulations nowhere explain
why actual harm would foreseeably result from release of the
specific type of material at issue here. See J.A. 278 (“Release
of this draft report would be harmful as the draft would also
reveal the thought and decision-making processes of the
[Office of the Inspector General] and may not reflect the
agency’s final decisions.”), 279 (identical assertion). Indeed,
that declaration contains a sweeping assertion that “requir[ing]
disclosure of the withheld information would prevent the
[Office of the Inspector General] from engaging in meaningful
documented discussion about policy matters in the future,
31
which could have a negative effect on agency decision-making,
and would potentially confuse the public about the reasons for
the [Office of the Inspector General]’s actions in this matter.”
J.A. 281. This is precisely the kind of boilerplate,
unparticularized, and hypothesized assertion of harm that we
said would be insufficient in Machado Amadis, 971 F.3d at
371.
We are, in fact, hard pressed to imagine how these
assertions differ in any material way from the routine assertions
of deliberative process privilege that pre-dated the FOIA
Improvement Act. It seems that very little about the FBI’s
declarations has changed despite passage of the FOIA
Improvement Act and its foreseeability requirement. Compare
Second Decl. of David M. Hardy, Concepcion v. FBI, 606 F.
Supp. 2d 14 (D.D.C. May 16, 2008) (No. 07-CV-1766), ECF
No. 23-1 (“FBI employees would hesitate to offer their candid
and conscientious opinions to superiors or coworkers if they
knew that their opinions of the moment might be made a matter
of public record at some future date” and thus “[r]elease of this
type of information would have an inhibitive effect upon the
development of policy and administrative direction.”), with
J.A. 249 (Third Decl. of David M. Hardy) (“FBI employees
would hesitate to offer their candid and conscientious opinions
to superiors or coworkers if they knew their opinions of the
moment might be made a matter of public record at some future
date, and because such self-censorship would, in turn, degrade
the quality of agency decisions by depriving the decision-
makers of fully-explored options developed from robust
debate.”).
Although the government contends that its declarations
satisfy Machado Amadis’s foreseeable harm standard, its
argument is far off base. In Machado Amadis, the government
addressed redactions to two records, totaling four pages. See
32
Joint Appendix at 263–264, Machado Amadis, 971 F.3d 364(No. 19-5088). Yet there, the government’s affidavit contained
thoroughgoing and detailed pages of explanation as to the
importance and deliberative value of the specific information
in those records in the particular decisional context in which
they arose, as well as the precise damage to the relevant agency
operations that would result from their release. See id. at 268–
272; see also 971 F.3d at 371 (affidavit adequately explained
that chilling candid discussion among State Department line
attorneys would impair the internal discussions “necessary for
efficient and proper adjudication of administrative appeals”).
In other words, the government directly articulated “[a] link
between the specified harm and the specific information
contained in the material withheld.” See H.R. REP. NO. 391, at
9.
In contrast, in this case, Hardy offered nothing more than
a perfunctory, sweeping, and undifferentiated declaration that
release of every single record withheld would have an
“inhibiting effect” by “chill[ing] full and frank discussions[.]”
J.A. 248. Unlike the declaration in Machado Amadis, Hardy
did not explain the particular sensitivity of the types of
information at issue or the role that they play in the relevant
agency decisional processes (and, therefore, whether and how
their release would harm similar deliberations in the future).
The Waller declaration fared no better. See J.A. 278–279.
Both declarations ignore that the agency must specifically
and thoughtfully determine whether it “reasonably foresees
that disclosure” of each particular record “would harm an
interest protected by [the] exemption.” 5 U.S.C.
§ 552(a)(8)(A)(i)(I); see id. § 552(b), (b)(5); see also S. REP.
NO. 4, at 8 (an agency must review the content of each
“particular record” sought and determine whether it
“reasonably foresees that disclosing that particular document”
33
would harm an interest protected by the exemption) (emphasis
added); H.R. REP. NO. 391, at 9 (agency must “articulate * * *
the link between the specified harm and specific information
contained in the material withheld”) (emphasis added).
b
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. See Rosenberg I, 342 F. Supp. 3d at 79.
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. On this record, the agency reasonably concluded that
disclosure would likely impair the candid discussion of tactical
options and proposals for adjusting operations going forward.
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.
34
IV
We affirm the district court’s judgment as to the Comey
emails and the internal FBI emails discussing revisions to their
undercover tactics. We reverse the district court’s decision
allowing the FBI to withhold the drafts of the Inspector
General’s report, the Factual Accuracy Comments, and the
draft PowerPoint presentations. The appeal as to the cover
letter accompanying the final Inspector General’s report is
dismissed as moot. The case is remanded for further
proceedings consistent with this opinion.
So ordered.