Electronic Frontier Foundation v. United States Department of Justice , 890 F. Supp. 2d 35 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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ELECTRONIC FRONTIER )
FOUNDATION, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-641 (RBW)
)
UNITED STATES DEPARTMENT OF )
JUSTICE, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
The plaintiff, Electronic Frontier Foundation, brings this action against the United States
Department of Justice (“DOJ”) pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552 (2006), seeking the release of records concerning “discussions and negotiations between
the United States and the European Union with respect to the international exchange of personal
information for use by law enforcement authorities.” Complaint (“Compl.”) ¶ 1. Currently
before the Court are the parties’ renewed cross-motions for partial summary judgment. Upon
careful consideration of the parties’ submissions, 1 the Court concludes for the following reasons
that it must grant the DOJ’s motion in part and deny it in part without prejudice, and deny the
plaintiff’s motion.
1
The Court considered the following filings and their supporting exhibits in resolving the parties’ cross-motions:
the Defendant’s Renewed Motion for Partial Summary Judgment (“Def.’s Mot.”); the defendant’s Supplemental
Statement of Material Facts Not in Genuine Dispute (“Def.’s Facts”); the Memorandum in Opposition to
Defendant’s Renewed Motion for Partial Summary Judgment and in Support of Plaintiff’s Cross-Motion for Partial
Summary Judgment (“Pl.’s Mem.”); the Plaintiff’s Supplemental Statement of Material Facts Not in Dispute and
Response to Defendant’s Supplemental Statement of Facts Not in Dispute; the Reply in Support of Defendant’s
Renewed Motion for Partial Summary Judgment and Opposition to Plaintiff’s Motion for Summary Judgment
(“Def.’s Reply”); and the Reply Memorandum in Support of Plaintiff’s Second Motion for Partial Summary
Judgment (“Pl.’s Reply”).
I. BACKGROUND
A. Facts
The following facts are not in dispute. In November 2006, the United States and the
European Union (“E.U.”) agreed to negotiate a set of common principles concerning the
protection of personal information in the trans-national law enforcement context. Def.’s Facts ¶
1; Compl. ¶ 5. To pursue that goal, they created the United States-European Union High Level
Contact Group (“HLCG”). Def.’s Facts ¶ 1. The HLCG negotiations consisted of two levels of
deliberations involving the United States: (1) internal deliberations among United States
government officials and employees concerning the United States’s negotiation position; and (2)
external deliberations with E.U. officials concerning common data protection principles. Id. ¶ 2.
No single United States official exercised ultimate decisionmaking responsibility or authority
over the HLCG deliberations. Id. Rather, the negotiations were carried out by an inter-agency
group of experts from the DOJ, the United States Department of Homeland Security (“DHS”),
and the United States Department of State (“State Department”). Id. ¶ 3.
In March 2008, “[m]ost of the [HLCG] principles were completed,” and the HLCG
reported their progress at a meeting attended by the Attorney General, the Secretary of
Homeland Security, and their E.U. counterparts (collectively, the “ministers’) in Brdo, Slovenia.
Id. ¶ 7. The ministers agreed that the HLCG’s work should continue, particularly on the issue of
“redress.” 2 Id. Consequently, the HLCG experts continued to meet by video conference or in
person for approximately another 18 months. Id. “The United States continued to consider
various proposals [from the E.U.] and reached a consensus on how to respond to each.” Id.2
“The redress principle concerns an individual’s right to [an] effective remedy in the event of their privacy being
infringed or violated.” Def.’s Mot., Supplemental Declaration of Vanessa R. Brinkmann (“Office of Information
Policy (“OIP”) Decl.”) at 4 n.2.
2
“The [United States] and E.U. experts also held a seminar on the issue of redress in early
October 2009[,] and continued [their] negotiations thereafter.” Id.The negotiating positions of the United States were developed in meetings, emails, and
telephone calls among the HLCG experts, as well as during occasional discussions with senior
policy officials at the DHS, DOJ, and State Department. Id. ¶ 6. Because the proposed
provisions on data protection had to be accepted by all three agencies, the United States’s
positions were reached by consensus. Id. Thus, the DOJ and DHS each drafted proposed
provisions, which were then the subject of discussion within the United States team of
negotiators. Id. The representatives from the E.U. also drafted some of the proposals and
counter-proposals. Id.Once the HLCG principles were completed, they were formally presented to, and
accepted by, the ministers at the “US-EU Justice and Home Affairs Ministerial Troika on
October 28, 2009.” Def.’s Mot., OIP Decl. ¶ 9. The ministers also decided at the October 28,
2009 Ministerial Troika to begin work immediately on a binding international agreement
between the United States and the E.U. on privacy and the protection of personal data in the law
enforcement context. Def.’s Facts ¶ 8. Negotiations on this issue began in March 2011, and
were ongoing as of the filing date of the DOJ’s reply brief in this case on April 12, 2012. Def.’s
Reply at 5.
B. Procedural Background
By letter dated November 6, 2009, the plaintiff submitted a FOIA request to the DOJ
seeking “all DOJ records created since January 20, 2009[,] that concern, discuss[,] or reflect the
work or deliberations of the HLCG.” Compl. ¶ 5. After receiving no records from the DOJ, the
plaintiff instituted this action on April 26, 2010. Id. ¶ 11.
3
The parties then filed cross-motions for partial summary judgment. By Memorandum
Opinion and Order dated November 30, 2011, the Court denied the DOJ’s motion without
prejudice, and granted the plaintiff’s motion “insofar as it challenge[d] the adequacy of the
DOJ’s Vaughn submissions and the agency’s segregability analysis,” but otherwise denied it
without prejudice. 3 Elec. Frontier Found. v. DOJ, 826 F. Supp. 2d 157, 175 (D.D.C. 2011).
Specifically, the Court found that the DOJ’s Vaughn submissions were “too vague for the Court
to determine whether the [DOJ] components’ properly applied the deliberative process privilege
to the withheld documents,” id. at 167, and that the DOJ’s “description of its segregation efforts
[was] too categorical for the Court to evaluate whether any factual material in the documents
withheld in full is ‘inextricably intertwined’ with deliberative material such that the agency can
permissibly withhold the documents in their entirety,” id. at 174 (quoting Johnson v. Exec.
Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)). The Court thus directed the DOJ
“to submit revised Vaughn submissions” and “a renewed motion for partial summary judgment,”
which took “into account the deficiencies identified by the Court.” Id. at 175.
The DOJ has now submitted a renewed motion for partial summary judgment along with
revised Vaughn submissions, which it claims are sufficiently detailed to demonstrate that it is
entitled to withhold documents from the plaintiff pursuant to the deliberative process privilege of
FOIA Exemption 5. See Def.’s Mot. at 5-26. In response, the plaintiff has submitted a cross-
motion for partial summary judgment. Shifting the focus from the adequacy of the DOJ’s
3
The Court, like the parties, refers on some occasions to the DOJ’s Vaughn indices and supporting declarations
collectively as the DOJ’s “Vaughn submissions.” See Def.’s Mot., OIP Decl.; Def.’s Mot., Second Supplemental
Declaration of Kristin L. Ellis (“Crim. Div. Decl.”); Def.’s Mot., OIP Vaughn Index; Criminal Division’s 2nd
Supplemental Vaughn Index (“Crim. Div. Vaughn Index”); Def.’s Mot., Declaration of Thomas Burrows (“Office of
Internal Affairs (“OIA”) Decl.”).
4
Vaughn submissions, the plaintiff now challenges the DOJ’s invocation of the deliberative
process privilege, as well as its segregability analysis. See Pl.’s Mem. at 3-23.
As matters currently stand, the DOJ estimates that 178 pages of documents remain in
controversy. Def.’s Reply at 2 n.3. The plaintiff disputes this figure, maintaining that
approximately 490 pages of documents remain in dispute. Pl.’s Reply at 4 n.2.
II. STANDARD OF REVIEW
“FOIA cases typically and appropriately are decided on motions for summary
judgment.” Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009)
(collecting cases). Summary judgment will be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “[T]he agency bears the burden of showing that there is no genuine
issue of material fact, even when the underlying facts are viewed in the light most favorable to
the requester.” Weisberg v. DOJ, 705 F.2d 1344, 1350 (D.C. Cir. 1983). To satisfy this burden,
the agency may rely upon affidavits, declarations, and other exhibits which describe the
requested documents and “‘the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption, and are
not controverted by either contrary evidence in the record []or by evidence of agency bad faith.’”
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d
773, 776 (D.C. Cir. 1984)). Agency affidavits submitted in the FOIA context are “accorded a
presumption of good faith.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.
1991).
The “‘burden is on the agency’ to show that [the] requested material falls within a FOIA
exemption.” Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)
5
(quoting 5 U.S.C. § 552(a)(4)(B)). Consistent with congressional intent tilting the scales in favor
of full disclosure, the District of Columbia Circuit has instructed that “exemptions from
disclosure must be narrowly construed . . . and conclusory and generalized allegations of
exemptions are unacceptable.” Morley v. CIA, 508 F.3d 1108, 1114-15 (D.C. Cir. 2007)
(internal citation and quotation marks omitted). Nevertheless, “[w]hen disclosure touches upon
certain areas defined in the exemptions . . . , the [FOIA] recognizes limitations that compete with
the general interest in disclosure, and that, in appropriate cases, can overcome it.” Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
III. ANALYSIS
A. FOIA Exemption 5 and the Deliberative Process Privilege
The DOJ has invoked FOIA Exemption 5, which “allows an agency to withhold
disclosure of a record if the record meets two requirements: (1) it is an ‘inter-agency or intra-
agency memorandum[] or letter[]’ that (2) ‘would not be available by law to a party other than an
agency in litigation with the agency.’” McKinley v. Bd. of Govs. of Fed. Reserve Sys., 647 F.3d
331, 335-36 (D.C. Cir. 2011) (quoting 5 U.S.C. § 552(b)(5)). The Court will address these
requirements in turn.
1. Inter-Agency or Intra-Agency Memoranda
For a document to satisfy the first requirement of Exemption 5, its “source must be a
Government agency.” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001). According to the Vaughn submissions submitted by two DOJ components—the Office
of Information Policy (“OIP”) and the Criminal Division—the documents currently in dispute
were only exchanged between agency officials within the Executive Branch. See Def.’s Mot.,
OIP Decl. ¶ 18 (“There is no indication—either based on the face of the documents themselves
6
or on the . . . []search conducted by OIP staff—that the documents or information withheld by
[the] OIP were shared outside of the Executive Branch.”); Def.’s Mot., Crim. Div. Decl. ¶¶ 16,
22, 28, 33, 38, 43, 48, 53, 58, 63 (same). Although the OIP did locate some documents “that
were exchanged between the United States HLCG members and their E.U. counterparts,” its
declaration explains that “OIP has referred such material to the Departments of State and
Homeland Security for processing and direct response to [the] plaintiff.” Def.’s Mot., OIP Decl.
¶ 20. Consequently, this “material is not currently under review by the Court.” Id.; see also
Def.’s Reply at 2 (contending that the “[p]laintiff’s conjectures about documents allegedly
shared with E.U. officials are not the subject of the current motions practice because any such
documents would have been referred to the U.S. Departments of State and Homeland Security
for a direct response to [the] plaintiff”). Because the plaintiff has offered no contrary evidence
rebutting the agency’s Vaughn submissions, 4 the Court concludes that the documents currently
in dispute qualify as “inter-agency or intra-agency” records within the meaning of FOIA
Exemption 5.
2. The Deliberative Process Privilege
“To satisfy the second requirement of Exemption 5, the record must be non-disclosable
‘under one of the established civil discovery privileges,’” one of which is “‘the deliberative
process privilege.’” McKinley, 647 F.3d at 339 (citation omitted). “‘To qualify for Exemption 5
protection under the deliberative process privilege, an agency’s materials must be both [1]
predecisional and [2] a part of the deliberative process.’” Id. (citation omitted). “[A] document
4
While the plaintiff apparently does not dispute that “the documents themselves . . . [were] solely disseminated
within the Executive Branch,” it contends that “much of the information contained within the withheld records has
likely been disclosed to the E.U. negotiators in the course of the [HLCG] negotiations,” and that the DOJ has
consequently waived the deliberative process privilege as to this information. Pl.’s Mem. at 11 (emphasis in
original). The Court will address this waiver argument infra at pages 12-14.
7
[is] predecisional if ‘it was generated before the adoption of an agency policy’ and deliberative if
‘it reflects the give-and-take of the consultative process.’” Judicial Watch, Inc. v. FDA, 449
F.3d 141, 151 (D.C. Cir. 2006) (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d
854, 866 (D.C. Cir. 1980)). Designed to promote “candid discussion within the agency” and to
improve the decisionmaking process, Formaldehyde Inst. v. HHS, 889 F.2d 1118, 1122 (D.C.
Cir. 1989) (internal quotation marks and citation omitted), the privilege ensures that government
agencies are not “forced to operate in a fishbowl,” Petroleum Info., 976 F.2d at 1434 (internal
quotation marks and citation omitted). To that end, documents qualify for protection under the
privilege “only if they ‘reflect[] advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions and policies are formulated, [or]
the personal opinions of the writer prior to the agency’s adoption of a policy.’” Pub. Citizen,
Inc. v. OMB, 598 F.3d 865, 875 (D.C. Cir. 2010) (citation omitted); accord NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 150 (1975). Ultimately, “‘the key question’” for the Court is
“‘whether the disclosure of materials would expose an agency’s decisionmaking process in such
a way as to discourage candid discussion within the agency and thereby undermine the agency’s
ability to perform its functions.’” Horowitz v. Peace Corps, 428 F.3d 271, 276 (D.C. Cir. 2005)
(quoting Dudman Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1568 (D.C. Cir.
1987)).
In seeking to establish that its withholdings were “predecisional” and “deliberative,” the
OIP’s Vaughn submissions state that “the entirety of the information withheld by [the] OIP
consists of records created during the negotiations over the redress principle” in anticipation of
several HLCG meetings, including an April 2009 Ministerial Troika, an early October 2009
workshop and HLCG meeting, and an October 2009 Ministerial Troika. See Def.’s Mot., OIP
8
Decl. ¶¶ 11, 15; Def.’s Mot., OIP Vaughn Index at 2-13. The Criminal Division’s Vaughn
submissions similarly maintain that its withholdings were “predecisional” because they predated
the particular HLCG meetings and decisions to which they related, see Def.’s Mot., Crim. Div.
Decl. ¶¶ 17, 23, 29, 34, 39, 44, 49, 54, 59, 64; Def.’s Mot., Crim. Div. Vaughn Index at 3-49, and
were “deliberative” insofar as they reflect the
multiple debates and decisions about what positions [the] DOJ would advocate or
oppose [during the HLCG negotiations]; how to achieve consensus regarding
those positions among the U.S. stakeholders ([the] DOJ and the Departments of
State and Homeland Security); how to go about negotiations with the E.U. on
common data protection principles; and whether, where, and how to [begin] the
process of reaching a binding international agreement with the E.U. on data
protection in the law enforcement context. The entirety of this process comprises
the [DOJ’s] “deliberative process,” which [the Criminal Division] seeks to
protect.
Def.’s Mot., Crim. Div. Decl. ¶ 13. The DOJ deemed it “necessary to withhold this information
not only to ensure candid discussion in future deliberations within the agency generally, but also
to ensure that those U.S. officials/employees who are currently negotiating the binding
international agreement with the E.U. feel free to candidly express their thoughts, opinions, and
recommendations during internal discussions, without fear that their communications will be
publicly disclosed.” Id. ¶ 12 (emphasis added).
In response to the DOJ’s claim of privilege, the plaintiff challenges “three discernible
categories of information” withheld by the DOJ: (1) “information [which] represents a final
position of the U.S. HLCG negotiations or, at least, describes positions that were shared or
disseminated outside the agency;” (2) “factual information summarizing negotiations or
describing proposals of [E.U.] HLCG negotiators;” and (3) “briefing materials that are neither
‘predecisional’ nor ‘deliberative’ within the meaning of Exemption 5.” Pl.’s Mem. at 10. The
Court will address each of the plaintiff’s challenges in turn.
9
i. The DOJ’s Alleged Withholding of Information that Reflects the
United States HLCG Experts’ Final Negotiating Positions
The plaintiff first asserts that many of the records withheld by the DOJ are not protected
by the deliberative process privilege because they likely contain information that became the
final positions of the United States during the HLCG negotiations. See Pl.’s Mem. 10-16. In
advancing this argument, the plaintiff relies on the well-recognized principle in this Circuit 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, 617 F.2d at 866; see also Sears, 421 U.S. at 161 (“[I]f
an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum
previously covered by Exemption 5 in what would otherwise be a final opinion, that
memorandum” cannot be withheld under Exemption 5.).
In determining “[w]hether a document has in fact been ‘adopted’ by an agency,” the
Court must examine “the function and significance of the document in the agency’s
decisionmaking process.” Pub. Emps. for Envt’l Responsibility v. U.S. Section Int’l Boundary
& Water Comm’n, 839 F. Supp. 2d 304, 322 (D.D.C. 2012). “This type of determination is
necessarily fact-dependent, but it is also driven by a ‘strong theme’ in this circuit’s opinions
[recognizing] that an ‘agency will not be permitted to develop a body of secret law, used by it in
the discharge of its regulatory duties and in its dealings with the public, but hidden behind a veil
of privilege because it is not designated as formal, binding, or final.’” Id. at 322-23 (quoting
Coastal States, 617 F.2d at 867). Indeed, the “[c]ases that have addressed whether an agency
informally adopted a predecisional document generally have focused on whether the documents
are used by an agency as secret law or working law.” Sec. Fin. Life Ins. v. Dep’t of Treasury,
No. 03-cv-102, 2005 WL 839543, at *7 (D.D.C. April 12, 2005) (citing Tax Analysts v. IRS, 294
10
F.3d 71, 81 (D.C. Cir. 2002); Taxation with Representation Fund v. IRS, 646 F.2d 666, 678
(D.C. Cir. 1981); Coastal States, 617 F.2d at 867-68); accord United States v. Philip Morris
USA, Inc., 218 F.R.D. 312, 320 (D.D.C. 2003) (“The analysis of ‘informal adoption’ in the
existing caselaw turns on whether or not documents from line agencies constituted ‘working
law.’”).
Even assuming that the plaintiff is correct in asserting that the withheld information
reflects the United States HLCG experts’ final negotiating positions, the Court finds its reliance
on the “agency adoption” line of cases to be misplaced. To begin with, there is no indication that
the agencies that participated in the HLCG negotiations (i.e., the DOJ, DHS, and State
Department) formally or expressly adopted the United States HLCG experts’ negotiating
positions in any publicly-available document or publication, nor does the plaintiff contend that is
the case. And regarding informal adoption, this is not a case where the withheld information
sought by the plaintiff was used as the agencies’ “working law” or “secret law.” Compare, for
example, the facts of this case to those in Coastal States, where the Department of Energy
withheld pursuant to the deliberative process privilege “memoranda from regional counsel to
auditors working in [the agency’s] field offices, issued in response to requests for interpretations
of regulations within the context of particular facts encountered while conducting an audit of a
firm.” 617 F.2d at 858. In rejecting the agency’s assertion of privilege as to these documents,
the Circuit reasoned:
The evidence strongly supports the district court’s conclusion that, in fact, these
opinions were routinely used by agency staff as guidance in conducting their
audits, and were retained and referred to as precedent. If this occurs, the agency
has promulgated a body of secret law which it is actually applying in its dealings
with the public but which it is attempting to protect behind a label. This we will
not permit the agency to do. . . . These documents, whatever the formal powers of
regional counsel to issue binding interpretations of the regulations, in practice
represent interpretations of established policy on which the agency relies in
11
discharging its regulatory responsibilities; withholding them would serve no
legitimate policy interest of the government
Id. at 869.
Here, the plaintiff “only seeks access to . . . information [conveying] the . . . negotiating
positions taken by the U.S. HLCG officials . . . that were disclosed to the E.U.” Pl.’s Mem. at
15. These “negotiating positions,” moreover, related to the non-binding HLCG principles. See
Def.’s Facts ¶ 5 (noting that the HLCG “principles are not legally binding”). Information
concerning the United States’s negotiating position on a set of non-binding principles is not
comparable to the documents withheld in Coastal States, which consisted of internal memoranda
that the agency used as precedential guidance in discharging its regulatory duties. While the
latter category of documents implicates the concern that the agency has “promulgated a body of
secret law which it is actually applying in its dealings with the public,” Coastal States, 617 F.2d
at 869, the former category does not. The Court therefore views as unpersuasive the plaintiff’s
challenge to the DOJ’s claim of privilege on the ground that the information contained in the
withheld documents was formally or informally adopted by the agencies. 5
ii. Waiver
The Circuit has recognized that “voluntary disclosure of privileged material . . . to
unnecessary third parties . . . waives the [deliberative process] privilege . . . . for the document or
information specifically released,” although such disclosure does not waive the privilege “for
related materials.” In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997) (internal quotation
marks and citations omitted). Relying on this principle, the plaintiff argues that “given the
5
Insofar as the plaintiff may be arguing that the withheld information lost its protected status because it was used by
the United States HLCG team “in its dealings with the public,” Coastal States, 617 F.2d at 866, that position must
likewise be rejected. The E.U. HLCG negotiators do not qualify as “the public,” nor is there any indication that the
withheld information was utilized by the agencies in their dealings with the public at large. Indeed, the reason the
plaintiff filed this action in the first instance is because the “HLCG negotiations were not carried out publicly.” Pl.’s
Mem. at 13 (emphasis added).
12
subject of the FOIA request at issue and the nature of the bilateral [HLCG] negotiations in
general, it stands to reason that significant amounts of information contained within the records
withheld from [the plaintiff] were disclosed to [the] DOJ’s EU counterparts during the course of
negotiations.” Pl.’s Mem. at 12. The plaintiff further contends that it is the DOJ’s burden to
explain whether information in the withheld records “has been disclosed to a third party,” and
that it “is not enough [for the agency] to say that the records, themselves, have not been
disclosed.” Pl.’s Reply at 8-9.
The Court is not persuaded by the plaintiff’s waiver argument. For starters, it is the
plaintiff, not the agency, who carries the burden of producing at least some evidence that the
deliberative process privilege has been waived. See Rothschild v. Dep’t of Energy, 6 F. Supp.
2d 38, 40-41, n.3 (D.D.C. 1998); cf. Davis v. DOJ, 968 F.2d 1276, 1279 (D.C. Cir. 1992)
(noting, in an analogous context, that when a party claims that documents may not be withheld
under FOIA because they are already in the “public domain,” it is the “party who asserts that
material is publicly available [that] carries the burden of production on that issue . . . because the
task of proving the negative—that information has not been revealed—might require the
government to undertake an exhaustive, potentially limitless search” (emphasis in original)).
The plaintiff has not carried that burden here. It instead offers only speculation that undisclosed
information in email exchanges between the U.S. HLCG negotiators “likely represents the final
position of the United States HLCG team that was ultimately communicated to the EU
negotiators.” Pl.’s Mem. at 14 (emphasis added); see also Pl.’s Reply at 8 (“[P]ortions of the
withheld records likely contain information that has been disclosed to the EU.” (emphasis
added)). Because there is no proof that specific “documents or information” withheld as
privileged by the DOJ were voluntarily disclosed to “unnecessary third parties,” and because
13
waivers of the deliberative process privilege “‘should not be lightly inferred,’” In re Sealed Case,
121 F.3d at 741 (citation omitted), the plaintiff’s contention must be rejected.
In support of its waiver argument, see Pl.’s Mem. at 12, the plaintiff relies on Center for
International Environmental Law v. Office of the U.S. Trade Representative, 237 F. Supp. 2d 17,
30 (D.D.C. 2002), in which another member of this Court held that agency documents or
portions thereof that were produced by or shared with a foreign government during treaty
negotiations were not exempt from disclosure under FOIA Exemption 5. That holding, however,
was not based on a finding that the agency waived the deliberative process privilege by
disclosing information to a foreign government; rather, the court found that the documents did
not qualify as “inter-agency or intra-agency memorandums or letters” under 5 U.S.C. § 552(b)(5)
because it was undisputed that the documents in that case were exchanged with a foreign
government. See id. That is not the case here. As previously noted, the DOJ’s Vaughn
submissions demonstrate that the documents currently under review were exchanged only within
the Executive Branch. See Def.’s Mot., OIP Decl. ¶ 18; Def.’s Mot., Crim. Div. Decl. ¶¶ 16, 22,
28, 33, 38, 43, 48, 53, 58, 63. And insofar as the agency located documents “that were
exchanged between the U.S. HLCG members and their E.U. counterparts,” the “OIP has referred
such material to the Departments of State and Homeland Security for processing and direct
response to [the] plaintiff.” Def.’s Mot., OIP Decl. ¶ 20. Thus, documents that were exchanged
with the E.U. HLCG negotiators “are not currently under review by the Court,” id., and the
plaintiff’s reliance on Center for International Environmental Law is misplaced.
iii. The DOJ’s Alleged Withholding of Purely Factual Information
“The deliberative process privilege does not . . . protect material that is purely factual,
unless the material is so inextricably intertwined with the deliberative sections of documents that
14
its disclosure would inevitably reveal the government’s deliberations,” In re Sealed Case, 121
F.3d at 737 (emphasis added), or “it reflects an ‘exercise of discretion and judgment calls,’”
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011)
(quoting Mapother v. DOJ, 3 F.3d 1533, 1539 (D.C. Cir. 1993)). For example, the privilege does
not shield “straightforward factual recounting[s] of . . . meeting[s],” which merely “detail[] what
each of the participants said,” and “do not reflect the writer’s analytical views regarding the
matters discussed.” Gold Anti-Trust Action Committee v. Bd. of Govs. of Fed. Reserve Sys.,
762 F. Supp. 2d 123, 137 (D.D.C. 2011) (internal quotation marks omitted and emphasis in
original); accord Nat’l Whistleblower Ctr. v. HHS, 849 F. Supp. 2d 13, 38-39 (D.D.C. 2012);
Williams & Connolly LLP v. SEC, 729 F. Supp. 2d 202, 213 (D.D.C. 2010). It does, on the
other hand, protect “factual material . . . assembled through an exercise of judgment in extracting
pertinent material from a vast number of documents for the benefit of an official called upon to
take discretionary action.” Mapother, 3 F.3d at 1539; see Ancient Coin Collectors Guild, 641
F.3d at 513 (deeming protected under the deliberative process privilege “factual summaries
contained in [agency] reports [which] were culled by the [agency] from the much larger universe
of facts presented to it and reflect an exercise of judgment as to what issues are most relevant to
the pre-decisional findings and recommendations” (internal quotation marks omitted)).
The plaintiff asserts that the DOJ has improperly withheld “two types of factual material:
first, factual summaries of HLCG meetings or negotiations; and second, factual information
concerning positions taken by various E.U. HLCG negotiators.” Pl.’s Mem. at 16. It points to
several documents and document descriptions in support of its position, see id. at 16-17, which
the Court will consider in turn.
15
a. CRM-000460
CRM-000460 is an email chain between the United States HLCG negotiators. The
redacted version of the document released to the plaintiff shows that Thomas Burrows wrote the
following message to Mary Lee Warren: “Can you give us a read out on where the HLCG stands
after the ministerial? I think the whole HLCG would benefit from a paragraph on what
transpired and what the expectation of the [European Commission] is, and also the Swedish
Presidency.” Pl.’s Mem., Exhibit (“Ex.”) C (CRM-000460). The DOJ withheld most of Mary
Lee Warren’s response to this question pursuant to Exemption 5, except for the following
statement: “I thought I already sent you this read-out Tom, but if not . . . [a] more complete
account of the whole [meeting] will be reported in an upcoming cable.” Id. (omission in
original). Burrows then concluded the email exchange by responding “[t]hanks Mary Lee, I now
have a better understanding of where things stand.” Id.
When viewed in isolation, the redacted version of CRM-000460 might suggest that the
DOJ improperly withheld Mary Lee Warren’s “straightforward factual recounting of a meeting.”
Gold Anti-Trust Action Committee, 762 F. Supp. 2d at 137 (emphasis omitted). However, the
description for CRM-000460 in the Criminal Division’s Vaughn Index, which the plaintiff
largely ignores, undermines that inference:
In this e-mail exchange, Thomas Burrows solicited information about the status of
the HLCG deliberations following the ministerial troika meeting, for use in
determining what DOJ would suggest be the next steps for the U.S. HLCG
experts and their internal deliberations, as well as deliberations with the E.U.
experts. Mary Lee Warren responded, providing the information she thought was
relevant and summarizing her views and reactions to the meeting.
Def.’s Mot., Crim. Div. Vaughn Index at 46 (emphasis added). This description of CRM-000460
thus indicates that the withheld information contained facts that Mary Lee Warren “assembled
through an exercise of judgment” based on what she deemed “pertinent” from a larger set of
16
facts, and which she provided for the benefit of the United States HLCG experts’ “discretionary
action[s]” in connection with the HLCG deliberations. Mapother, 3 F.3d at 1539. The withheld
material also contained Warren’s own “views and reactions.” Such information reflects the
agencies’ predecisional, deliberative process and is therefore privileged.
b. CRM-00757
The Criminal Division’s Vaughn Index provides the following description of CRM-
00757:
This is an internal DOJ e-mail in which Thomas Burrows expressed his opinion
about the E.U.’s proposed position on the redress principle. He shared this with
Ms. Moncada to gauge her reaction before sending it to the other U.S. HLCG
experts. Mr. Burrows ultimately did not share his response with the other U.S.
HLCG experts.
Def.’s Mot., Crim. Div. Vaughn Index at 42. Although the plaintiff seemingly concedes that
Burrows’s “opinion” is privileged, it contends that “the portion of the record describing the
‘EU’s proposed position on the redress principle’ is factual and, as such, must be segregated and
released.” Pl.’s Mem. at 17. According to the Criminal Division’s declaration, however, “any
factual information in [this] message[] would reveal the author[’s] decisions about which facts
were most relevant and most important to the discussions at hand,” and “no additional
information could be reasonably segregated and released without revealing the protected
deliberations.” Def.’s Mot., Crim. Div. Decl. ¶ 56. The Court finds this assessment plausible,
given that the Vaughn Index’s description of CRM-00757 states that Burrows relayed the E.U.’s
proposed position on the redress principle in the process of expressing his own, privileged
opinion on that principle. See Ancient Coin Collectors Guild, 641 F.3d at 509 (“Uncontradicted,
plausible affidavits showing reasonable specificity and a logical relation to the [FOIA]
17
exemption are likely to prevail” at the summary judgment stage). Accordingly, the Court finds
the plaintiff’s challenge to the withholding of CRM-00757 unavailing.
c. TB 682-684
According to the OIP’s Vaughn Index, TB-682-684 consist of “[t]hree e-mail messages
presenting opinions on a draft proposal from the EU.” Def.’s Mot., OIP Vaughn Index at 4. 6
The plaintiff seeks only factual information concerning the “draft proposal from the EU,” see
Pl.’s Mem. at 17 n.4, a request which assumes, of course, that the writers’ opinions can be
extricated neatly from the parts of the document discussing the E.U.’s proposal. The OIP
declaration states, however, that “this material contains extensive edits and comments from US
HLCG experts as they work to refine draft language and statements or share their candid
assessments of the implication for various draft language options under consideration in ongoing
negotiations,” and that it “released all segregable nonexempt information.” Def.’s Mot., OIP
Decl. ¶ 15. Because the DOJ’s Vaughn submissions present a plausible and logical justification
for the agency’s withholding of the entire document, the Court rejects the plaintiff’s challenge to
this withholding.
d. CRM-000153-154
The Criminal Division’s Vaughn Index describes CRM-000153-54 as follows:
In this message, Mary Lee Warren summarized an “off-the-record” conversation
she and Jackie Bednarz had with an EU official about the HLCG deliberations.
This message reflects the information that Ms. Warren determined was most
relevant for the U.S. HLCG experts et al. to know and the issues she concluded
most required the U.S. HLCG experts’ consideration as they worked to develop
the U.S. position on issues remaining to be resolved by the HLCG. It reflects Ms.
6
Although the OIP’s Vaughn Index indicates that TB-682-684 were “withheld on behalf of the Criminal Division,
and, accordingly, the justification for [the] withholding[] [will] be addressed by that component,” Def.’s Mot., OIP
Vaughn Index at 1 n.2, 4, the Court has found no corresponding entry for the documents in the Criminal Division’s
Vaughn Index.
18
Warren’s personal opinions about various topics, actions, and individuals. Her
purpose in sharing it was to inform the U.S. HLCG experts’ internal deliberations
in developing its negotiation position and strategy.
Def.’s Mot., Crim. Div. Vaughn Index at 44-45. The plaintiff characterizes CRM-000153-154 as
merely summarizing a meeting with E.U. officials. See Pl.’s Mem. at 17 n.4. But that
characterization of CRM-000153-154 ignores key details in the document’s Vaughn Index entry,
namely (1) that Warren’s message reflected her “personal opinions about various topics, actions,
and individuals”; (2) that her factual summary of the “off-the-record” conversation contained
only the information she deemed relevant to the U.S. HLCG experts’ deliberations, thus
indicating that she exercised judgment in assembling the pertinent facts; and (3) that she shared
the information to “inform the U.S. HLCG experts’ internal deliberations” as they developed
“the U.S. position on issues remaining to be resolved by the HLCG.” Def.’s Mot., Crim. Div.
Vaughn Index at 45. This document description suffices to show the predecisional and
deliberative nature of CRM-000153-54.
e. CRM-000612
CRM-000612 is a “portion of [an] internal DOJ e-mail exchange . . . [which] consists of
Mary Lee Warren’s opinion about [the] status of the HLCG deliberations and her suggestion of a
way to address an issue she believed was impeding the group’s work.” Id. at 41. In challenging
the withholding of this document, the plaintiff emphasizes that “the document describes ‘the
status of the HLCG deliberations,’” Pl.’s Mem. at 17 n.4, while omitting the crucial detail that it
concerns “Mary Lee Warren’s opinion” on that topic, Def.’s Mot., Crim. Div. Vaughn Index at
41 (emphasis added). Moreover, the Criminal Division’s declaration explains that CRM-000612
reflects agency officials’ “subjective determinations about whether certain actions or
circumstances affected or impeded the work of the HLCG, and their suggestions about how to
19
address or resolve the issues/problems they identified and to keep the negotiations moving
forward.” Def.’s Mot., Crim. Div. Decl. ¶ 55. It adds that “[t]hese opinions and suggestions
were shared with and discussed by U.S. Government employees as part of a process by which
resolution to the particular issue/problem was reached, as well as the process by which final
agreement on the common principles was achieved.” Id. Because the DOJ’s Vaughn
submissions indicate that CRM-000612 contains Warren’s subjective impressions and
recommendations regarding the HLCG deliberations as well as her identification of a potential
problem with respect to those deliberations, they adequately demonstrate that the document is
protected by the deliberative process privilege.
f. CRM-000786
CRM-000786 “is an internal DOJ e-mail in which Thomas Burrows described an issue
preventing agreement on the principles and his opinion about how the U.S. should respond to it.”
Def.’s Mot., Crim. Div. Vaughn Index at 43. The plaintiff apparently believes that the
document’s description of an “issue preventing agreement on the principles” is unprivileged
factual information, although it does not explain the basis for this position. See Pl.’s Mem. at 17
n.4. As just noted, however, the Criminal Division’s declaration states that CRM-000786 is
included within a category of documents containing agency officials’ “subjective determinations
about whether certain actions or circumstances affected or impeded the work of the HLCG, and
their suggestions about how to address or resolve the issues/problems they identified and to keep
the negotiations moving forward.” Def.’s Mot., Crim. Div. Decl. ¶ 55. Thus, Burrows’s
identification of an “issue preventing agreement on the principles” by itself entailed a
deliberative process, as determining what “actions or circumstances affected or impeded the
work of the HLCG” required an exercise of agency judgment. Id.
20
In sum, the plaintiff’s challenges to the foregoing withholdings all rest on the assumption
that the documents contain factual information summarizing HLCG meetings and the negotiating
positions of the E.U. that is readily segregable from the privileged parts of the documents. The
DOJ’s Vaughn submissions, however, indicate that any factual material in these documents is
privileged because it is either “inextricably intertwined with the deliberative sections of
documents that its disclosure would inevitably reveal the government’s deliberations,” In re
Sealed Case, 121 F.3d at 737, or “reflects an ‘exercise of discretion and judgment calls,’”
Ancient Coin Collectors Guild, 641 F.3d at 513. Because the agency’s Vaughn submissions are
“[u]ncontradicted, plausible,” and show with “reasonable specificity . . . a logical relation to” the
deliberative process privilege, id. at 509, the Court deems the submissions sufficient to carry the
agency’s burden at the summary judgment stage.
iv. Briefing Materials
The plaintiff next contends that the DOJ has improperly withheld, pursuant to the
deliberative process privilege, “briefing materials” prepared for senior policy officials at the
DOJ. Pl.’s Mem. at 18. Although not parsed by the plaintiff as such, its arguments attack both
the purported predecisional and deliberative nature of the withheld briefing materials, which the
Court will address separately.
a. Predecisional
Noting that “the HLCG was negotiated by [agency] experts” rather than the senior policy
officials who received the briefing materials, the plaintiff contends that the “senior policy
officials were not being called on to make decisions: the decisions had already been made and
the briefing materials simply served as a means to keep senior officials apprised of the status and
course of the negotiations.” Id. at 21. While acknowledging that “the briefing materials may
21
reflect ‘recommendations or suggestions,’ on the way the HLCG negotiations should go
forward,” the plaintiff asserts that “those recommendations were not provided to assist the senior
policy officials in making decisions. Rather, the briefing materials reflect a factual description of
the negotiations and the proposed course of action developed by the HLCG negotiators—a
course of action given effect by the HLCG experts, not senior policy officials.” Id. at 22. Thus,
it maintains, the withheld briefing materials were not predecisional. Id. at 20-21.
The plaintiff’s arguments misapprehend the scope of the deliberative process at issue in
this case and the role of the senior policy officials in that process. To be sure, there is no dispute
that “the actual [HLCG] negotiations were carried out by experts rather than by senior policy
officials.” Def.’s Mot., OIA Decl. ¶ 4. But senior policy officials within the U.S. government
did participate in “various high-level meetings” with E.U. officials regarding the HLCG
deliberations, Def.’s Mot., Crim. Div. Decl. ¶ 15, at which the officials “represent[ed] the
interests of the [DOJ] as a whole,” Def.’s Mot., OIP Decl. ¶ 16. And senior policy officials
(most notably for present purposes, the Attorney General) were ultimately responsible for
formally adopting the principles at the October 28, 2009 Ministerial Troika. Def.’s Mot., OIA
Decl. ¶ 7. Moreover, the broader context of the HLCG’s mission was to establish non-binding
principles regarding data protection that would set the stage for later negotiations on a binding
international agreement, see Def.’s Mot., OIP Decl. ¶¶ 12, 7, and it was the “senior policy
officials” who “decided at [the October 28, 2009 Ministerial Troika] that work should begin on a
binding international agreement between the EU and US on the privacy and protection of
personal data in the law enforcement context,” Def.’s Mot., OIA Decl. ¶ 7; see also Def.’s Mot.,
Crim. Div. Decl. ¶ 13 (stating that decisions regarding “whether, where, and how to [begin] the
process of reaching a binding international agreement with the E.U. on data protection in the law
22
enforcement context” was part of the DOJ’s deliberative process). The process of negotiating
the binding international agreement is “still ongoing.” Def.’s Reply at 5.
The plaintiff takes a restrictive view of the “predecisional” requirement, one which would
require the DOJ to pinpoint a decision of the senior policy officials to which the briefing
materials contributed. See, e.g., Pl.’s Mem. at 20 (“[I]t is difficult to ascertain the decision to
which the briefing material contributed.” (emphasis in original)). The Circuit, however, long ago
rejected such an interpretation of the deliberative process privilege. See Access Reports v. DOJ,
926 F.2d 1192, 1196 (D.C. Cir. 1991) (holding that “the exemption does not ‘turn[] on the ability
of an agency to identify a specific decision in connection with which a memorandum is
prepared’” because “[a]ny requirement of a specific decision after the creation of the document
would defeat the purpose of the exemption” (quoting Sears, 421 U.S. at 151 n.18) (emphasis in
original)). To satisfy the predecisional element, the agency need only “identify[] the
decisionmaking process” to which the withheld documents contributed. Id. (emphasis added).
The DOJ has done that here, as its Vaughn submissions explain that the withheld briefing
materials were prepared for senior policy officials in anticipation of (1) various HLCG meetings
where the officials represented the United States’s interests in the HLCG deliberations, and (2)
the October 28, 2009 Ministerial Troika, at which the officials formally accepted the HLCG
principles and agreed to commence negotiations on a binding international agreement.
b. Deliberative
The plaintiff also asserts that there is nothing “deliberative” about the withheld briefing
materials. Pl.’s Mem. at 20. But here again, the plaintiff’s argument is belied by the DOJ’s
Vaughn submissions. Take, for example, NL-231(b), which the OIP’s Vaughn Index describes
as:
23
Briefing material prepared for an October 27, 2009 meeting with Beatrice Ask,
Swedish Justice Minister[,] and Tobias Billström, Minister of Migration and
Asylum Policy. This meeting is held in anticipation of the October 28, 2009
Ministerial [Troika] meeting. Factual background has been disclosed; withheld
material summarizes [the] author’s selection of and opinion on key points.
Def.’s Mot., OIP Vaughn Index at 9. According to the plaintiff, the information withheld from
NL-231(b) reflects only “the HLCG experts’ conclusions and summaries of the status of the
HLCG negotiations,” which, it claims, is not deliberative. Pl.’s Mem. at 20. Yet, insofar as the
briefing material reflects the author’s “opinion on key points,” it is plainly deliberative. And
regarding information revealing the author’s “selection of . . . key points,” the OIP’s declaration
cogently explains why this material is deliberative:
In creating this briefing material, the drafters must determine the information,
both factual and advisory that is necessary to provide senior officials so that they
are succinctly apprised of the relevant background information, the pertinent
issues, any anticipated questions and areas of concerns, and provided with
appropriate talking points in a concise format. . . . When the author chooses
certain facts among a wider universe, the selection of facts for inclusion is an
exercise of judgment as to what is significant to the issue being discussed. To
reveal those facts, would in turn expose the author’s assessment of what he or she
deemed significant in the course of preparing the Department’s senior leadership
for meetings, or in bringing leadership “up to speed” on matters that they may be
questioned about, or might wish to weigh in on.
Def.’s Mot., OIP Decl. ¶ 16. Similarly, the plaintiff challenges the briefing materials withheld
by the Criminal Division on the ground that they contain non-deliberative “summaries about the
work and progress of the HLCG.” Pl.’s Mem. at 20 (internal quotation marks omitted).
According to the Criminal Division’s declaration, however,
the responsive portions [of the briefing materials] are a combination of:
summaries about the work and progress of the HLCG by employees who sifted
through and compiled the information they deemed most pertinent; candid
assessments about issues affecting or impeding the progress of the deliberations
and/or reaching of consensus on the common data protection principles; and
suggestions about how the Attorney General, Deputy Attorney General, and/or
[the Criminal Division’s] Deputy Assistant Attorney General may address those
issues with the E.U. during the meetings.
24
Def.’s Mot., Crim. Div. Decl. ¶ 15 (emphasis added). Thus, while the plaintiff may be correct
that the briefing materials contain, among other things, summaries of the HLCG deliberations,
the DOJ’s Vaughn submissions indicate that these summaries reveal the agency “employees’
deliberative process of selecting and presenting facts,” which required them to “exercise[] their
judgment by anticipating what information these officials would need in order to be prepared to
address any questions or issues regarding the work of the U.S.’s commitment to the HLCG.” Id.
¶ 18. Because such material qualifies as deliberative, the plaintiff’s challenge is meritless.
B. Segregability
Under the FOIA, “[a]ny reasonably segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. §
552(b). “It has long been a rule in this Circuit that non-exempt portions of a document must be
disclosed unless they are inextricably intertwined with exempt portions.” Mead Data Cent., Inc.
v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). So important is this requirement
that “[b]efore approving the application of a FOIA exemption, the district court must make
specific findings of segregability regarding the documents to be withheld.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (emphasis added and citations omitted).
The DOJ bears the burden of showing that no such segregable information exists, Army Times
Pub’lg Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993), and “must provide a
‘detailed justification’ for its non-segregability,” Johnson v. Exec. Office for U.S. Attorneys, 310
F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead, 566 F.2d at 261).
The Court previously discussed the DOJ’s segregability efforts at length in its November
30, 2011 Memorandum Opinion. See Elec. Frontier Found., 826 F. Supp. 2d at 173-74.
Although the Court generally approved of the DOJ’s segregability analysis, it instructed the
25
agency to “provide a more comprehensive description as to the various documents withheld in
full,” identifying “‘what proportion of the information in [the] document[s],’ if any, ‘is non-
exempt and how that material is dispersed throughout the document[s].’” Id. at 174 (quoting
Mead Data Cent., 566 F.2d at 261) (emphasis added).
Consistent with the Court’s instructions, the DOJ’s revised Vaughn submissions better
explain the basis for the agency’s withholdings of documents in full. Namely, the OIP’s
declaration states that the records it withheld in full consist of (1) draft documents of which the
plaintiff has been provided final versions and thus no longer challenges; (2) 55 pages of briefing
material that the OIP determined contain no segregable information; (3) a 21-page document,
NLI-30(a), consisting of “‘snippets of proposed text’ that Mary Lee Warren is providing to
Thomas Burrows for his review . . . in preparation for the October 1, 2009 redress [principle]
workshop”; and (4) a group of documents “comprised of twelve sets of handwritten notes from
US HLCG experts Kirsten Moncada and Nancy Libin,” containing “the authors’ evaluations and
contemporaneous thoughts on internal US discussions regarding HLCG deliberations and
negotiations, contextual revisions regarding the draft redress principle, proposed meeting
agendas, and other logistics created either in anticipation or aftermath of meetings, as well as
notes to self and questions for follow-up.” See Def.’s Mot., OIP Decl. ¶¶ 21-24. Insofar as these
documents contained factual information, the OIP concluded that “it was inextricably intertwined
with the privileged deliberative information, or could not be segregated and released without
revealing the Government’s deliberations.” Id. ¶ 22. As for the Criminal Division, it conducted
a renewed segregability review for each of its withholdings, and concluded that most of the
documents withheld in full contained no “purely factual,” segregable information, and that non-
exempt information in some documents consisted only of stray phrases with no meaningful
26
informational content. See Def.’s Mot., Crim. Div. Decl. ¶¶ 20, 25, 31, 36, 41, 51, 56, 61, 66. In
some instances, however, the Criminal Division’s re-review uncovered non-exempt and
segregable portions of documents previously withheld in full, and it accordingly released that
information to the plaintiff. E.g., id. ¶ 61.
Upon review of the DOJ’s revised Vaughn submissions, and consistent with the Court’s
rulings above rejecting the plaintiff’s arguments that the DOJ has improperly withheld purely
factual information, the Court concludes that the DOJ has generally carried its burden of
showing the non-segregability of its withholdings—save for one exception: a document withheld
in full by the OIP labeled OIPGEB-1. According to the OIP’s Vaughn Index, OIPGEB-1
consists of 48 pages of “[b]riefing material prepared for the Attorney General in preparation of
the October 28, 2009 Ministerial Troika.” Def.’s Mot., OIP Vaughn Index at 12. Despite the
Court’s prior directive that the agency provide further explanation for documents withheld in
full, the OIP’s declaration does not give a detailed justification for why there was no segregable
information in this particular document. Given the length of the document, there is the
possibility that it contains at least some segregable information. The OIP must therefore better
explain its segregability efforts regarding this document. Thus, the Court will defer granting the
DOJ partial summary judgment as to the segregability of OIPGEB-1.
IV. CONCLUSION
The Court has carefully considered the DOJ’s Vaughn submissions and the plaintiff’s
challenges to the agency’s withholdings. Based on this review, the Court finds that partial
summary judgment in the DOJ’s favor is warranted as to the documents currently under review
27
by the Court, 7 because the DOJ’s Vaughn submissions “describe the justifications for
nondisclosure with reasonably specific detail, demonstrate that the information withheld
logically falls within the claimed exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.” Larson, 565 F.3d at 862 (citations
omitted). The Court further finds that the DOJ has adequately shown the non-segregability of all
of its withholdings, with the exception of OIPGEB-1. Accordingly, the DOJ’s renewed motion
for partial summary judgment is granted in part and denied in part without prejudice, and the
plaintiff’s renewed cross-motion for partial summary judgment is denied.
SO ORDERED this 10th day of September, 2012. 8
REGGIE B. WALTON
United States District Judge
7
As previously noted, the DOJ has referred documents that may have been shared with E.U. officials to the DHS
and State Department for direct processing, and those documents consequently are not under review by the Court at
this time.
8
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
28