Citizens for Responsibility and Ethics in Washington v. U.S. Department of State ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY
AND ETHICS IN WASHINGTON,
Plaintiff,
Case No. 20-cv-2044 (CRC)
v.
U.S. DEPARTMENT OF STATE,
Defendant.
MEMORANDUM OPINION
In this Freedom of Information Act (“FOIA”) case, Plaintiff Citizens for Responsibility
and Ethics in Washington (“CREW”) seeks records related to the U.S. Department of State’s
handling of document and testimony requests from congressional committee chairs. After
CREW filed suit, the Department released twelve responsive documents in part, but invoked
FOIA Exemption 5 and the deliberative process privilege to justify withholding portions of each.
CREW objects to all of the Exemption 5 redactions, which it groups into three categories: (1)
material related to draft responses to specific congressional inquiries, including drafts of one
letter and emails discussing potential edits; (2) emails discussing the Department’s approach to
various other document requests and document-processing issues; and (3) select redactions from
an internal Department report discussing progress responding to document requests.1 The parties
have filed cross-motions for summary judgment on the propriety of these withholdings.
The Court will deny the State Department’s motion for summary judgment, in part
without prejudice, and will grant in part and deny in part CREW’s cross-motion. As to the first
1
The parties’ briefing discusses these categories in a different order. The Court has
rearranged the second and third categories to group together similar substantive discussions.
two categories, the Department has not provided sufficient detail for the Court to determine
whether the material withheld is deliberative under the standards the D.C. Circuit recently
articulated in Reporters Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir.
2021), and Judicial Watch, Inc. v. U.S. Department of Justice, 20 F.4th 49 (2021). The Court
will therefore remand these matters to the Department to reevaluate the propriety of these
redactions and, if it chooses, provide more detailed justifications for any remaining withholdings.
But the Court does have enough information to evaluate the final group of redactions to the
internal report. State has not and cannot establish that the material redacted is deliberative, nor
that release of the report would lead to reasonably foreseeable harm. Accordingly, the
Department must release this document in full.
I. Background
CREW is a non-profit watchdog organization focusing on government ethics and
transparency. See Compl. ¶ 4. In 2020, several news outlets reported that the White House had
directed administration officials—including at the State Department—to rebuff efforts at
oversight from Democratic chairs of various House committees, but cooperate in full with
requests by the Republican heads of Senate committees. See id. ¶¶ 10–16. In response to this
alleged partisan approach to congressional oversight, CREW filed a complaint with the State
Department’s Office of Inspector General requesting an investigation into “allegations that the
State Department [wa]s improperly politicizing its approach to high-profile congressional
investigations.” Id. ¶ 17.
Not content to wait for the Inspector General to act, CREW also lodged two FOIA
requests with the State Department in June 2020. See id. ¶ 20. In the first request, CREW
sought material “pertaining, concerning, or reflecting any guidance, instruction, directive, or
2
recommendation on how to handle document or testimony requests from congressional
committee chairs, and whether that handling differs depending on the political party of the
Chairman or Chairwoman who makes the request.” Id. ¶ 21. In the second request, CREW
sought two additional categories of records. First, it requested any communications sent or
received by certain State Department officials regarding requests for documents or testimony
from three Democratic House committee chairs. Id. ¶ 22. Second, CREW asked for documents
and communications sent or received by then-Secretary of State Michael R. Pompeo and other
high-level officials related to CREW’s Inspector General complaint. Id. ¶ 23. When the State
Department failed to timely respond to the FOIA requests, CREW filed suit. See id. ¶ 27.
Production is now complete. The Department released portions of twelve responsive
documents, but it redacted material from each based on the deliberative process privilege. See
Stein Decl. ¶¶ 8–9, 12. CREW disputes the propriety of these withholdings. See Pl.’s Opp’n to
Def.’s Mot. Summ. J. & Mem. in Support of Pl.’s Cross-Mot. Summ. J. (“Pl.’s Cross-MSJ”) at
10–16. In CREW’s view, the Department also has not established that foreseeable harm would
result from disclosure, as required by the FOIA Improvement Act of 2016, 5 U.S.C.
§ 552(a)(8)(A)(i), nor that it has released any segregable, non-exempt material. See Pl.’s Cross-
MSJ at 16–20. The parties filed cross-motions for summary judgment, which are ripe for review.
II. Legal Standards
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976).
“But Congress also realized that legitimate governmental and private interests could be harmed
by release of certain types of information.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir.
2015) (internal quotation marks omitted). “Accordingly, FOIA balances the public’s need for
3
access to official information with the Government’s need for confidentiality by exempting nine
categories of records from disclosure.” Id. (internal alteration and citation omitted); see 5 U.S.C.
§ 552(b). Because FOIA “mandates a strong presumption in favor of disclosure,” its “statutory
exemptions, which are exclusive, are to be narrowly construed.” Nat’l Ass’n of Home Builders
v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (internal quotation marks omitted).
FOIA disputes are typically and appropriately resolved on summary judgment. See
Citizens for Resp. & Ethics in Washington v. Dep’t of Homeland Sec., 525 F. Supp. 3d 181, 187
(D.D.C. 2021). In FOIA cases, an “agency is entitled to summary judgment if no material facts
are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was
adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-
exempt parts of records have been disclosed after redaction of exempt information.’” Prop. of
the People, Inc. v. Office of Mgmt. & Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting
Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C. 2017)).
As to the claimed exemptions, the agency may satisfy its burden through declarations that
“describe[] the justifications for withholding the information with specific detail” and
“demonstrate[] that the information withheld logically falls within the claimed exemption.”
ACLU v. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). “Such declarations are entitled to a
presumption of good faith, and the court can award the agency summary judgment based solely
on the information so provided.” Jud. Watch, Inc. v. CIA, 310 F. Supp. 3d 34, 41 (D.D.C. 2018).
Agency declarations will not support summary judgment, however, if the plaintiff puts forth
contrary evidence or demonstrates the agency’s bad faith. ACLU, 628 F.3d at 619.
As to its obligation to segregate and release non-exempt material, the government may
similarly demonstrate that it released all reasonably segregable parts of otherwise exempt records
4
by submitting an affidavit indicating that an agency official conducted a review of each
document and determined that the documents did not contain segregable information. Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). While the agency may not
rely on conclusory statements, Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242,
260–61 (D.C. Cir. 1977), it is entitled to a presumption that it complied with its segregability
obligation, Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013).
Finally, the government must also demonstrate at summary judgment that it has satisfied
the standards imposed by the FOIA Improvement Act of 2016, which allows an agency to
withhold information only if it “reasonably foresees that disclosure would harm an interest
protected by an exemption” to FOIA or “disclosure is prohibited by law.” 5 U.S.C.
§ 552(a)(8)(A)(i). The statute’s “distinct foreseeable harm requirement . . . foreclose[s] 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.” Reps. Comm., 3 F.4th at 369 (second alteration in original) (internal
quotation marks omitted).
III. Analysis
This case concerns the application of FOIA Exemption 5 and the deliberative process
privilege, which the State Department cited as justification for all the withholdings in dispute.
Exemption 5 protects “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). The Exemption thus incorporates, “albeit in a less-than-straightforward way[,] . . .
the litigation privileges available to Government agencies in civil litigation,” including the
deliberative process privilege. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777,
5
785 (2021). The deliberative process privilege exists “[t]o protect agencies from being forced to
operate in a fishbowl.” Id. (internal quotation marks omitted). To do so, it “shields from
disclosure documents reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies are formulated.” Id.(internal quotation marks omitted). An agency may only invoke the deliberative process
privilege “for documents that are both predecisional and deliberative.” Reps. Comm., 3 F.4th at
362. “Documents are ‘predecisional’ if they were generated before the agency’s final decision
on the matter, and they are ‘deliberative’ if they were prepared to help the agency formulate its
position.” U.S. Fish & Wildlife Serv., 141 S. Ct. at 786.
CREW groups its challenges to the government’s invocation of the deliberative process
privilege into three categories. First, CREW objects to the withholding of material related to
responses to specific congressional inquiries, including two full drafts of a letter to the House
Committee on Oversight and Reform’s then-Chair Elijah E. Cummings, as well as emails
discussing edits to this and another draft letter. Pl.’s Cross-MSJ at 10–12. Second, CREW
contests the Department’s withholding of several emails about document processing—related to
other congressional document requests, and a plan for resuming operations following a
government shutdown. Id. at 15–16; see also Pl.’s Reply at 6–7. Third, CREW argues that the
Department improperly withheld “purely factual material” from an internal progress report about
responses to congressional document requests. Pl.’s Cross-MSJ at 13–15. As to each category,
CREW also asserts that the Department has not established that reasonably foreseeable harm
would result from disclosure, and has not satisfied its further obligation to release any
segregable, non-exempt material. See id. at 16–20.
6
Below, the Court will consider in turn the parties’ arguments regarding each category.
As to the first two groups—related to congressional correspondence and internal policy
discussions—the Court concludes that the Department has not, on the current record, met its
burden at summary judgment. In particular, the Department’s declarations and Vaughn index do
not provide the level of detail needed to assess whether the documents are indeed deliberative,
following recent guidance from the D.C. Circuit on this question in Reporters Committee for
Freedom of the Press v. FBI, 3 F.4th at 361–68, and Judicial Watch, Inc. v. U.S. Department of
Justice, 20 F.4th at 54–57. The Court will therefore deny both motions for summary judgment
without prejudice as to these categories. As to the remaining withholding category, however—
factual material embedded in an internal progress report—the Court concludes that the
Department cannot meet its burden and that CREW is entitled to summary judgment.
Accordingly, the Court will deny the Department’s motion for summary judgment and grant
CREW’s cross-motion on that single issue.
A. Congressional correspondence drafts
CREW first challenges the withholding of emails related to specific congressional
correspondence. Here, CREW objects to the redaction of emails discussing draft letters to
Representative Cummings and then-Representative Trey Gowdy—neither of which, apparently,
were ever sent.2 It also argues that the Department improperly withheld the substantive content
2
The Department suggests that CREW has conceded any objection to the Representative
Gowdy material because its opening brief did not specifically mention this withholding. See
Def.’s Resp. & Reply at 2 n.1 (citing Shapiro v. U.S. Dep’t of Just., 239 F. Supp. 3d 100, 106 n.1
(D.D.C. 2017)). The Court will not treat this objection as conceded, though it agrees that
CREW’s opening brief could have been more precise. In that pleading, CREW took issue with
the withholdings in all twelve documents. See Pl.’s Cross-MSJ at 7, 9. Moreover, it clearly
argued against application of the exemption to the Representative Cummings material, id. at 10–
12, and those arguments apply to the similar exchanges about the Representative Gowdy letter.
7
of two attachments to those emails, which contained drafts of the letter to Representative
Cummings. On the current record, the State Department has adequately established that this
material is predecisional but has not demonstrated that it is also deliberative, as required for
invocation of the deliberative process privilege. See Reps. Comm., 3 F.4th at 362. As a result,
neither party is yet entitled to summary judgment.
The material CREW seeks in this category is predecisional. A document is
“predecisional” if it was “generated before the agency’s final decision on the matter,” and does
not “communicate[] a policy on which the agency has settled.” U.S. Fish & Wildlife Serv., 141
S. Ct. at 786. “[W]hether a document communicates the agency’s settled position” is a
“functional rather than formal inquiry,” requiring courts to “consider whether the agency treats
the document as its final view on the matter.” Id. at 786, 788. Neither the emails nor the
underlying draft letters represented the Department’s final view on how to respond to the
congressional inquiries at issue. In its summary judgment submissions, the Department
described the contents of the relevant emails as, among other things, “editing suggestions related
to . . . draft letters,” Second Stein Decl. ¶ 18; “preliminary, non-final thoughts about what
information should be included” in one letter, Vaughn Index at 1; and efforts to “seek[]
clearance” on the other, id. at 4. These are prototypical predecisional discussions. The draft
letters to Chairman Cummings likewise were not final. While CREW correctly notes that draft
documents are not “per se exempt” from disclosure, Judicial Watch, Inc., 20 F.4th at 55, a draft
is still “typically . . . predecisional” because it “is, by definition, a preliminary version of a piece
of writing subject to feedback and change,” U.S. Fish & Wildlife Service, 141 S. Ct. at 786, 788.
That is precisely how the Department’s Vaughn index describes the letters here: as “drafts
reflecting th[e] edits” proposed by staffers, “predat[ing] any final version of the letter prepared
8
by Department officials.” Vaughn Index at 1. Because these materials “preceded the finalization
and transmission” of any letter to Congress, they “qualify as predecisional.” Judicial Watch,
Inc., 20 F.4th at 55.
CREW disputes this conclusion. It contends that the Department has not adequately
established whether any letters were ever sent, giving the Court “no way to confirm” whether the
material, in fact, preceded a final decision. Pl.’s Cross-MSJ at 10–11. CREW’s argument
misses the mark, on both the facts and the law. As to the facts, the Court is satisfied that the
Department, at the very least, never sent the discussed letter to Representative Cummings. In
response to CREW’s summary judgment motion, the Department submitted a second declaration
detailing searches of both internal and public records that turned up no evidence of any
transmission. Second Stein Decl. ¶ 16. And as to the law, CREW’s argument erroneously
focuses on the outcome of the Department’s deliberations, rather than the role the material at
issue played in the process. As the Supreme Court explained last term, “[a] document is not final
solely because nothing else follows it.” U.S. Fish & Wildlife Serv., 141 S. Ct. at 786. While
proposals may “die[] on the vine” during deliberations, “documents discussing such dead-end
ideas can hardly be described as reflecting the agency’s chosen course.” Id. Here, the
Department apparently decided not to respond to either representative, so drafts and discussions
of potential responses do not “communicate[] a policy on which” the Department “ha[d] settled.”
Id. And even if CREW were right on the facts—and the Department did indeed send out letters
to Representatives Cummings or Gowdy—“a recommendation does not lose its predecisional . . .
character simply because a final decisionmaker later follows or rejects it without comment.”
Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 370–71 (D.C. Cir. 2020) (citing
Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 185 (1975)). The drafts and
9
discussions here were still mere recommendations about whether and how to communicate with
members of Congress, so they are predecisional.
But “[d]etermining whether a document is deliberative is less straightforward than
determining whether it is predecisional,” Jud. Watch, 20 F.4th at 55, and the Court does not have
enough information to make that evaluation on the present record. In the past year, the D.C.
Circuit has clarified what an agency must show—and at what level of detail—to sustain its
burden on a deliberative process claim at summary judgment. First in Reporters Committee, the
court evaluated several documents over which the FBI had claimed deliberative process
privilege, and found that not all of them were indeed deliberative. See 3 F.4th at 361–68. What
mattered, the court explained, was whether the “documents discuss and debate proposed agency
policies, positions, and actions,” rather than “simply describe already-made and in-place policy
choices.” Id. at 367.
Six months later—well after the close of briefing in this case—the D.C. Circuit further
explained how an agency must demonstrate that a given document fits this standard. In Judicial
Watch, the court considered the Department of Justice’s invocation of the deliberative process
privilege over several drafts of a statement that then-Acting Attorney General Sally Yates
ultimately released. 20 F.4th at 52. The court concluded that the Department had not established
the deliberative character of the draft statements under a test it drew from Senate of Puerto Rico
v. Department of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987). Id. at 55–57. That test
requires an agency to show (1) “what deliberative process is involved” and (2) “the role played
by the documents in issue in the course of that process,” and encourages the agency to further
“explain (3) the nature of the decisionmaking authority vested in the officer or person issuing the
disputed document, and (4) the relative positions in the agency’s chain of command occupied by
10
the document’s author and recipient.” Id. at 55 (internal citation and quotation marks omitted);
see also id. at 56 (explaining that the D.C. Circuit has found material deliberative where it “knew
the ‘who,’ i.e., the roles of the document drafters and recipients and their places in the chain of
command; the ‘what,’ i.e., the nature of the withheld content; the ‘where,’ i.e., the stage within
the broader deliberative process in which the withheld material operates; and the ‘how,’ i.e., the
way in which the withheld material facilitated agency deliberation”).
The State Department’s evidentiary submissions, made shortly after or before the D.C.
Circuit’s most recent pronouncements, do not include the level of detail the Court now needs to
evaluate the deliberative nature of the emails and draft letters. In particular, the Department has
not told us “who prepared the” emails or drafts “or to whom the[y] were addressed,” nor
anything about the “nature of the decisonmaking authority vested” in the various players,
including their “relative positions in the agency’s chain of command.” Id. at 56. Rather, in the
Vaughn index, the Department identifies the authors and recipients of the emails only by their
office—the offices of Information Programs and Services (IPS) and Government Information
Services (GIS) for the communications related to the Representative Cummings letter, and IPS
for those concerning the draft letter to then-Representative Gowdy. See Vaughn Index at 1, 4.
Nor has the Department told us much about the “deliberative process . . . involved”—i.e.,
the “procedure . . . followed” to consider the draft letters—or the “role” the material here played
“in the course of that process.” Jud. Watch, 20 F.4th at 56 (internal citation and quotation marks
omitted). In fact, the Department’s initial declaration provided no other detail about the authors,
recipients, content, or context of the material, other than what appeared in the Vaughn index.
While the Department later supplemented the record with respect to the letter to Representative
Cummings, its explanation is still sparse. In the second Stein declaration, the Department
11
explained that the emails focused on drafts of a three-page letter from Mary Elizabeth Taylor,
then-Assistant Secretary of the Bureau of Legislative Affairs, to Representative Cummings,
concerning the “status of six inquiries” of the House committee he then led. Second Stein Decl.
¶ 15. The declaration further describes the accompanying email exchange as “communications
reflecting, transmitting, and discussing proposed edits to these two drafts,” and notes that they
include “the drafters’ and editors’ preliminary, non-final thoughts about what information should
be included” in the letter. Id. ¶¶ 17–18. But the D.C. Circuit rejected just such a broad, non-
specific description of a deliberative process in Judicial Watch. There, a claim that disclosure
would “reveal the drafters’ evolving thought processes” and “ideas and alternatives considered
but ultimately rejected” was not enough; the department needed to “explain[] why.” 20 F.4th at
56. The State Department must do the same here.
For that reason, the Court will deny without prejudice both bids for summary judgment
on these documents, and will allow the Department to reevaluate its invocation of the
deliberative process privilege in light of Judicial Watch and Reporters Committee. To be clear,
the Court does not weigh in on whether the Department will ultimately be able to satisfy its
burden on this question. Courts in this district have long held that agency discussions about
“how to respond to questions from Congress about matters of agency policy qualify as
deliberative.” Judicial Watch, Inc. v. U.S. Dep’t of State, 306 F. Supp. 3d 97, 115–16 (D.D.C.
2018); see also Competitive Enter. Inst. v. EPA, 12 F. Supp. 3d 100, 119–20 (D.D.C. 2014)
(holding discussions about how to handle congressional testimony and communications were
deliberative); Judicial Watch, Inc. v. Dep’t of Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C.
2010) (holding same as to discussions of how to respond to inquiries from Congress). But the
Court simply cannot, on the record here, determine whether the material at issue constitutes the
12
type of back-and-forth exchange of ideas that the deliberative process privilege protects. Should
the Department determine that it does, State may again move for summary judgment and submit
a more detailed declaration to aid the Court in evaluating its claim.
Because the Court cannot yet determine the deliberative nature of the emails and draft
letters, it will hold off on evaluating whether the Department has met its other burdens at
summary judgment—to show that reasonably foreseeable harm would result from release of any
deliberative material, and to demonstrate that it adequately segregated any non-exempt material.
The Court notes, however, that the Department’s current description of the harm that would
foreseeably result from the release of this material may, too, be inadequate under the standards
the D.C. Circuit has articulated. In the second Stein declaration, the Department explains
generally that release “could reasonably be expected to have a chilling effect on the open and
frank discussion of ideas, recommendations, and opinions.” Second Stein Decl. ¶ 18. More
specifically, the Department continues, disclosure “may” lead employees to “hesitate to offer
their candid opinions to supervisors or coworkers about how to draft” the letters at issue. Id.(emphasis added). Of course, this kind of “chilling of candid advice is exactly what the
[deliberative process] privilege seeks to prevent.” Machado Amadis, 981 F.3d at 371. But, as
the D.C. Circuit has explained, “agencies must concretely explain how disclosure ‘would’—not
‘could’—adversely impair internal deliberations.” Reps. Comm., 3 F.4th at 369–70 (quoting
Machado Amadis, 971 F.3d at 371). And that explanation must be “focused,” demonstrating
“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.” Id.
The Court does not pass, now, on the sufficiency of the Department’s factual showings under
13
these standards. But, should it choose to renew its request for summary judgment, the
Department must make such a “focused and concrete,” id., showing of foreseeable harm.
B. Internal strategy discussions and documents
The Court reaches the same conclusions with respect to the next category of documents
CREW challenges, which similarly includes internal State Department emails and draft
documents. Here, CREW objects to two withholding decisions: (1) redactions of emails about
“Department strategy in responding to congressional inquiries,” see Vaughn Index at 3; Second
Stein Decl. ¶ 29; and (2) redactions from emails discussing a proposed plan for resuming
information-processing activities following a government shutdown, as well as a two-page
attachment containing that draft plan, see Vaughn Index at 5; Second Stein Decl. ¶ 31.3 As
above, the Court is convinced that this material is predecisional but cannot on the current record
determine whether any or all of it is deliberative.
This set of emails is predecisional. Again, a document is predecisional if it was
“generated before the agency’s final decision on [a] matter.” U.S. Fish & Wildlife Serv., 141 S.
Ct. at 786. The Department explains that a portion of these emails relate to a meeting where
staffers from several offices discussed “strategy in responding to congressional inquiries,” as
well as specific “edits and status updates” on “proposed responses” to various requests. Second
3
Throughout its papers, CREW repeatedly refers to the draft plan as one “to resume
activities in light of the COVID pandemic.” Pl.’s Reply at 6; see also Pl.’s Cross-MSJ at 15–16.
But the documents at issue date from before the pandemic began, in January 2019, see Vaughn
Index at 5, and must relate instead to reopening following the 35-day government shutdown in
December 2018 and January 2019. Notably, CREW’s discussion of these documents contains
largely atmospheric complaints about the State Department’s alleged slow-down of FOIA
processing during the pandemic, rather than any legal argument. See Pl.’s Cross-MSJ at 15–16.
True or not, these criticisms are irrelevant to whether the Department is entitled to withhold
material about its internal processes.
14
Stein Decl. ¶ 29–30. These emails are much like the ones evaluated above, as they, too, contain
discussions of how to respond to congressional inquiries before any “final decision about how
and whether to engage in a course of action.” Vaughn Index at 3. The draft reopening plan and
emails discussing it are likewise predecisional: They “precede[d] a final Department
determination regarding whether and how” the Office of Information Programs and Services
“should resume activities.” Second Stein Decl. ¶ 32.
CREW suggests that the Department has not established the predecisional nature of the
reopening plan because there is no “indication that State did not adopt the recommendations
regarding whether and how to resume activities following the government shutdown.” Pl.’s
Reply at 6. CREW is right that, “even if [a] document is predecisional at the time it is prepared,
it can lose that status if it is adopted, formally or informally, as the agency position on an issue or
is used by the agency in its dealings with the public.” Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). But CREW is wrong about what the Department
must show to rebut such a claim of agency adoption. “[W]hen parties dispute whether an
otherwise predecisional and deliberative document has lost its privileged status through adoption
or public use, the FOIA requester—not the agency—bears the burden of persuasion on that
issue.” Gellman v. Dep’t of Homeland Sec., 525 F. Supp. 3d 1, 7 (D.D.C. 2021) (Cooper, J.);
see also Elec. Priv. Info. Ctr. v. Dep’t of Just., 584 F. Supp. 2d 65, 78 (D.D.C. 2008) (requester
must provide evidence that agency “actually adopted or incorporated by reference the document
at issue”). CREW here offers “mere speculation” on the question of adoption, which is
insufficient to carry its burden. Elec. Priv. Info. Ctr., 584 F. Supp. 2d at 7.
But, as with the emails discussed above, the Court cannot on this record determine if the
redacted emails and withheld attachment are deliberative. The Department’s declaration
15
describes the material only as “discussions of internal Department processes” and “whether and
how to resume the Office’s activities.” Second Stein Decl. ¶¶ 30–31. The declaration mentions
that the emails contain some “edits” to and “status updates” regarding proposed “responses to
congressional inquiries”—the former of which seem potentially deliberative, the latter less
obviously so. Id. ¶ 30. And in general, the Department asserts that these documents are
deliberative only because they “reflect the give-and-take of preliminary views” on each subject.
Id. ¶ 32. Once again, the Department has failed to offer the information that the D.C. Circuit has
indicated is needed to determine whether the documents are deliberative, including the roles and
relative positions of the senders and recipients of the emails; details of the specific
decisionmaking process; and the way the redacted material aided in that process. Jud. Watch, 20
F.4th at 56.
For the same reasons discussed already, the Court will therefore deny both parties
summary judgment as to these documents without prejudice. The Court will likewise defer any
consideration of the Department’s compliance with the FOIA Improvement Act and its
segregability obligations. As with the first set of material, the Department should reevaluate
whether these redactions continue to be covered by the deliberative process privilege under the
D.C. Circuit’s recent guidance. If it believes they are, the Department may submit a more
detailed declaration alongside a renewed motion for summary judgment.
C. Excerpts from document-processing status report
The final redactions that the State Department made, and that CREW challenges, appear
in a document titled “IPS Weekly Activities Report and Quick Statistics for May 30, 2019.”
Vaughn Index at 2. This document is a weekly report summarizing, among other things, the
Office of Information Programs and Services’ progress processing various FOIA and
16
congressional document requests. Id. Most of the twelve lines redacted from the report contain
simple statistics: the total number of documents and pages that one portion of the Department—
the Congressional Document Production branch—sent along to another—the Bureau of
Legislative Affairs—for potential production to various congressional committees. Second Stein
Decl. ¶ 24. The Department redacted the number of documents and pages transmitted in
response to several specific congressional inquiries, as well as the total number sent along for
2019 and the previous two calendar years. Id. The Department also redacted a single sentence
describing the “preliminary status” of another State Department office’s efforts to respond to a
document request. Vaughn Index at 2. CREW contends that these redactions are improper
because the “number” of “potentially responsive” pages and “status” updates on various
document requests are “purely factual” and therefore not exempt under the deliberative process
privilege. See Pl.’s Cross-MSJ at 13–15. CREW also argues that the redactions, even if covered
by the privilege, cannot be withheld under the FOIA Improvement Act. The Court largely
agrees.
To begin, CREW apparently does not contest that the redacted material is predecisional.
The Department asserts that it is because it “relates to preliminary assessments made by
Department subcomponents” about the “number of pages and of documents” that were
potentially responsive to external document requests—assessments that preceded the final
decision and remained subject to change. Second Stein Decl. ¶ 25. Because this status report
does not “communicat[e] the agency’s settled position,” U.S. Fish & Wildlife Serv., 141 S. Ct. at
786, on whether any potentially responsive documents should in fact be produced, and because
CREW does not challenge this point, the Court will accept that the material is predecisional.
17
The problem for the State Department is that the redacted information is neither itself
deliberative, nor the type of factual material that can be shielded by the deliberative process
privilege. In its opening brief, the Department seemingly conceded the factual nature of the
redactions, but argued that they were nevertheless subject to the privilege because they would
“necessarily reveal the agency’s deliberative process, by allowing for a comparison with the final
number of documents determined by the agency to be responsive.” Def.’s MSJ at 9. In its
response brief, the Department changed tack. It now suggests that these preliminary assessments
and status updates are themselves “deliberative information” because they “‘reflect[] [State’s]
preliminary positions or ruminations about how to exercise discretion regarding whether and
how to’ release documents to Congress.” Def.’s Resp. & Reply at 5, 7 (quoting Heffernan v.
Azar, 417 F. Supp. 3d 1, 18 (D.D.C. 2019)). However framed, the Department’s arguments miss
the mark.
The material withheld from the IPS Weekly Activities Report is not inherently
deliberative. “[T]he key to whether a document is deliberative is whether it is part of the ‘give-
and-take’ of the ‘consultative process.’” Reps. Comm., 3 F.4th at 364 (quoting Machado
Amadis, 971 F.3d at 370). The Department contends that the redacted numbers themselves are
deliberative because they represent, in effect, a tally of every time the Congressional Document
Production branch evaluated a document and deemed it potentially worthy of production. Def.’s
Resp. & Reply at 7. In that way, the Department suggests, the numbers are comparable to an
initial cost estimate, which, the D.C. Circuit has noted, exhibits “a surface precision,” but in fact
“deriv[es] from a complex set of judgments.” Quarles v. Dep’t of Navy, 893 F.2d 390, 392–93
(D.C. Cir. 1990)). The Court doubts that the same complex set of judgments are at play here.
Rather, each of the CDP’s assessments seems to be binary—responsive or not. And once those
18
individual determinations are divorced from the specific documents at issue, the Court struggles
to see what deliberative judgment can be gleaned from the total.
More to the point, the Department never explains the role the numbers here play in any
consultative process. In Quarles, the numbers at issue—cost estimates for proposals to establish
a “homeport” for a Navy battleship group—had been produced by a naval “special study team,”
and were used by the Secretary of Defense to decide among various options. Id. at 391, 393.
Here, by contrast, the Department described the underlying report only as a “summar[y of] the
status of ongoing document requests being processed” by the office. Second Stein Decl. ¶ 22.
State has not explained who received these status reports, nor how they used the specific material
withheld—which included both ongoing updates and historical data—in any decisionmaking
process. The numbers, then, appear to be more “snapshots that seemingly function as factual
updates,” without “any relation to a consultative process.” Cause of Action Inst. v. Exp.-Imp.
Bank of the U.S., 521 F. Supp. 3d 64, 83 (D.D.C. 2021).
For similar reasons, the Court rejects the Department’s contention that it may
nevertheless invoke the deliberative process privilege, even if the material is indeed factual. To
be sure, in some cases factual material may still be protected by the deliberative process
privilege. Courts will allow withholding of factual material “culled . . . from [a] much larger
universe of facts,” such that it “reflect[s] an exercise of judgment.” Ancient Coin Collectors
Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (internal quotation marks
omitted). Likewise, factual material may be withheld if its disclosure “would so expose the
deliberative process that it must be covered.” Elec. Frontier Found. v. U.S. Dep’t of Just., 739
F.3d 1, 13 (D.C. Cir. 2014).
19
Although the Department tries to shoehorn this report into both rubrics, neither applies.
First, the Department suggests that that the numbers redacted from the IPS Weekly Report,
although “expressed in quantitative terms, . . . are nonetheless opinions rather than facts” because
they reflect one office’s judgment as to how many documents should be released. Def.’s Resp.
& Reply at 7 (quoting SMS Data Prod. Grp., Inc. v. U.S. Dep’t of Air Force, No. 88-cv-481,
1989 WL 201031, at *2 (D.D.C. Mar. 31, 1989)). This argument merely repackages the claim
that the status updates are themselves deliberative, which the Court has already rejected.
Moreover, the D.C. Circuit has cautioned that “the fact/opinion test . . . must not be applied
mechanically . . . because the privilege serves to protect the deliberative process itself, not
merely documents containing deliberative material.” Mapother v. Dep’t of Just., 3 F.3d 1533,
1537 (D.C. Cir. 1993). The redacted material here played no apparent role in any deliberative
give-and-take, so it is not opinion shielded from disclosure. Second, the Department asserts that
disclosure of the twelve redacted lines in this status report would “necessarily reveal the
Department’s deliberative process leading up to final release determinations.” Def.’s Resp. &
Reply at 6–7. But again, the Court does not see what these aggregated and out-of-context
updates could meaningfully reveal about any deliberative process. For that reason, the Court
concludes that the redactions are not deliberative.
Even if the redacted material here is deliberative, the Department has not met its burden
to justify withholding it under the FOIA Improvement Act. Congress enacted the FOIA
Improvement Act’s “distinct foreseeable harm requirement” in part out of “particular[] concern[]
with increasing agency overuse and abuse of Exemption 5 and the deliberative process
privilege.” Reps. Comm., 3 F.4th at 369. To carry this burden with respect to the IPS Weekly
Report redactions, the Department must provide “a focused and concrete demonstration of why”
20
their disclosure “will, in the specific context of the agency action at issue, actually impede those
same agency deliberations going forward.’” Id. at 370. The Department’s explanation here,
however, is all either boilerplate or speculation. It first suggests that releasing this information
“could reasonably be expected to chill the open and frank discussion between Department
subcomponents regarding how to process potentially responsive documents.” Second Stein
Decl. ¶ 26. The Court must reject such a “cookie-cutter,” “unparticularized” assertion. Reps.
Comm., 3 F.4th at 371. The Department more specifically suggests that, were this type of status
report made fully public, Department officials would “refuse to allow employees to provide such
information” in future status reports, making it more difficult to “track[] the status of such
requests,” leading inevitably to “backlogs” and a slow down in processing and production.
Second Stein Decl. ¶ 26. Although this projected harm is more specific, the Court finds it
wholly speculative, attenuated, and unconvincing, and therefore insufficient to carry the
Department’s burden. See Reps. Comm., 3 F.4th at 369 (“Agencies cannot rely on ‘mere
speculative or abstract fears or fear of embarrassment’ to withhold information.” (quoting S.
Rep. No. 4, 114th Cong., 1st Sess. 8 (2015)). As a result, the Court finds that the redacted
material—even if deliberative—would not result in any foreseeable harm if released, and so will
order the Department to do so.
21
IV. Conclusion
For the foregoing reasons, the Court will deny the Defendant’s motion for summary
judgment—in part without prejudice—and will grant in part and deny without prejudice in part
CREW’s cross-motion for summary judgment. A separate Order shall accompany this
memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: February 11, 2022
22