Electronic Privacy Information Center v. United States Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ELECTRONIC PRIVACY
INFORMATION CENTER,
Plaintiff,
Case No. 1:17-cv-00410 (TNM)
v.
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
The Electronic Privacy Information Center, or EPIC, claims a right under the Freedom of
Information Act to records from the Department of Justice about evidence-based assessment
tools that seek to predict the statistical probability of an individual’s recidivism. The Department
has identified relevant records in its possession but has withheld many records in whole or in
part, either as private personal information or as information protected by the presidential
communications and deliberative process privileges. Because the Department has justified each
of the withholdings that EPIC challenges, the Department’s Motion for Summary Judgment will
be granted and EPIC’s Cross-Motion for Summary Judgment will be denied.
I. BACKGROUND
EPIC’s Freedom of Information Act, or FOIA, request seeks five categories of records
related to evidence-based assessment tools, which can also be described as risk assessment tools:
1. All validation studies for risk assessment tools considered for use in sentencing,
including but not limited to, COMPAS, LSI-R, and PCRA. 1
2. All documents pertaining to inquiries for the need of validation studies or
general follow up regarding the predictive success of risk assessment tools.
1
These are commercial risk assessment tools currently in use in criminal cases. Compl. ¶ 9.
3. All documents, including but not limited to, policies, guidelines, and memos
pertaining to the use of evidence-based sentencing.
4. Purchase/sales contracts between risk-assessment tool companies, included
[sic] but not limited to, LSI-R and the federal government.
5. Source codes for risk assessment tools used by the federal government in pre-
trial, parole, and sentencing, from PCRA, COMPAS, LSI-R, and any other tools
used.
Compl. ¶ 14.
The Department of Justice identified and produced 359 pages of records, with some
redactions on 128 of those pages to protect privileged information under FOIA Exemption 5 and
private personal information under FOIA Exemption 6. Decl. of Vanessa R. Brinkmann ISO
Def.’s Mot. Summary J. (Brinkmann Decl.) ¶¶ 8, 14. The Department withheld 2,363 pages in
full under Exemption 5, claiming that the records enjoy the presidential communications
privilege and the deliberative process privilege. Id. ¶ 14. One of the key withholdings is a
document that the Department describes as a Predictive Analytics Report prepared for
submission to the White House. Id. ¶ 12. This report was prepared “at the direction of the White
House” after a 2014 White House report that tasked President Barack Obama’s senior advisors
with leading a comprehensive review of the effect of big data technologies, including the use of
predictive analytics in law enforcement. Id. ¶¶ 10-11. The Department also withheld drafts,
research, briefing material, and emails related to the Report. Id. ¶ 15. EPIC sued to challenge
several of these withholdings. 2 Now before the Court are Cross-Motions for Summary
Judgment. 3
2
This Court has subject matter jurisdiction over EPIC’s claims under 28 U.S.C. § 1331 because
they arise under federal law. See also 5 U.S.C. § 552(a)(4)(B) and (a)(6)(c)(i) (granting the
United States District Court for the District of Columbia jurisdiction over FOIA claims).
3
EPIC does not dispute the adequacy of the Department’s search for responsive records or the
permissibility of the Department’s Exemption 6 withholdings. It does contest the withholding of
the Predictive Analytics Report, the related research and briefing material, and two emails.
2
II. LEGAL STANDARD
To prevail on a motion for summary judgment, a movant must show 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). FOIA requires federal agencies to “disclose
information to the public upon reasonable request unless the records at issue fall within
specifically delineated exemptions.” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C.
Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A) (records sought must be “reasonably describe[d]”).
Thus, a FOIA defendant is entitled to summary judgment if it shows that there is no genuine
dispute about whether “each document that falls within the class requested either has been
produced, is unidentifiable or is wholly exempt from the Act’s inspection requirements.” See
Weisberg v. Dep’t of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).
To show that any unproduced documents are exempt from FOIA, an agency may file
“affidavits describing the material withheld and the manner in which it falls within the
exemption claimed.” King v. Dep’t of Justice, 830 F.2d 210, 217 (D.C. Cir. 1987). An agency
affidavit that addresses these points with “reasonably specific detail” provides sufficient grounds
for summary judgment unless it is “controverted by either contrary evidence in the record [or] by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981); see also SafeCard Servs. Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (giving
agency declarations “a presumption of good faith, which cannot be rebutted by purely
speculative claims”). Courts review the applicability of FOIA exemptions de novo. King, 830
F.2d at 217. Courts decide the “vast majority” of FOIA cases on motions for summary
3
judgment. See Brayton v. Office of United States Trade Rep., 641 F.3d 521, 527 (D.C. Cir.
2011).
III. ANALYSIS
FOIA 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,
provided that the deliberative process privilege shall not apply to records created 25 years or
more before the date on which the records were requested.” 5 U.S.C. § 552(b)(5). Exemption 5
has been interpreted to include materials subject to the presidential communications privilege as
well as materials subject to the deliberative process privilege. Judicial Watch v. Dep’t of Justice,
365 F.3d 1108, 1113 (D.C. Cir. 2004).
A. The Presidential Communications Privilege Protects the Department’s
Predictive Analytics Report
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997), is the leading case in this Circuit on the
metes and bounds of the presidential communications privilege. That case held that the privilege
protects “documents or other materials that reflect presidential decisionmaking and deliberations
and that the President believes should remain confidential.” Id. at 744. It is broad in that it
“applies to documents in their entirety, and covers final and post-decisional materials as well as
pre-deliberative ones.” Id. at 745. And it reaches beyond communications to which the
President is a party. Id. at 750. But it does not reach past “communications authored or solicited
and received by those members of an immediate White House adviser’s staff who have broad
and significant responsibility for investigating and formulating the advice to be given the
President on the particular matter to which the communications relate.” Id. This is because the
scope of the privilege must “be construed as narrowly as is consistent with ensuring that the
confidentiality of the President’s decisionmaking process is adequately protected.” Id. at 752.
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Narrow construction of the privilege helps to balance “the twin values of transparency and
accountability of the executive branch on the one hand, and on the other hand, protection of the
confidentiality of Presidential decision-making and the President’s ability to obtain candid,
informed advice.” Judicial Watch v. Dep’t of Justice, 365 F.3d at 1112.
The Department of Justice relies on the presidential communications privilege to
withhold the Predictive Analytics Report in full. 4 It explains that the White House “solicited and
received” the Report from the Department. Brinkmann Decl. ¶ 43. More specifically, after the
2014 White House report that tasked the President’s senior advisors with a comprehensive
review of the effect of big data technologies, a senior White House advisor wrote a memorandum
to the Attorney General providing action steps related to the review. Id. ¶ 42. At the direction of
the White House, the Department’s Office of Legal Policy prepared the Predictive Analytics
Report. Id. And the Principle Deputy Assistant Attorney General of the Office of Legal Policy
submitted the Report to the White House Counsel’s Office. Id.; see also Pl.’s Cross-Mot.
Summary J. 23 (noting that the Department submitted the Predictive Analytics Report to then-
Associate White House Counsel Kate Heinzelman). I agree with the Department of Justice that
this the Report enjoys protection from disclosure as a communication “solicited and received by
those members of an immediate White House adviser’s staff who have broad and significant
responsibility for investigating and formulating the advice to be given the President on the
particular matter to which the communications relate.” See In re Sealed Case, 121 F.3d at 750.
4
The Department also argues that the deliberative process privilege applies to the Report but
concedes that, “[a]bsent the presidential communications privilege, the Report could be
segregated.” Def.’s Reply ISO Mot. Summary J. 5. Because I conclude that the presidential
communications privilege applies to the document in its entirety, I need not decide whether the
deliberative process privilege applies to the document in part.
5
But EPIC challenges this withholding on three grounds. First, EPIC argues that the
Department lacks the authority to invoke the presidential communications privilege unilaterally.
In the context of discovery, Circuit precedent has not resolved “whether the privilege must be
invoked by the President as opposed to a member of his staff.” In re Sealed Case, 121 F.3d at
744 n.16. Even if a member of the President’s staff could invoke the privilege in discovery, the
Department of Justice is an agency and not a presidential staff member.
But the question at hand is not whether an agency can invoke the privilege in discovery
but whether an agency can invoke the privilege under FOIA Exemption 5. Although the Circuit
has cited cases from the discovery context to suggest that there may be narrow limits on who can
invoke the privilege, it has expressly declined to decide what limits apply in the FOIA context.
Judicial Watch, 365 F.3d at 1114. And the Supreme Court has made clear that “discovery rules
can only be applied under Exemption 5 by way of rough analogies.” EPA v. Mink, 410 U.S. 73,
86 (1973), superseded by statute on other grounds, Pub. L. No. 93-502 § 2, 88 Stat. 1561, as
recognized in Ray v. Turner, 587 F.2d 1187, 1190-91 (D.C. Cir. 1978).
In FTC v. Grolier, Inc., the Supreme Court determined that Exemption 5 protected
documents from disclosure under FOIA even though a court had ordered the FTC to disclose
those same documents in discovery. 462 U.S. 19, 27-28 (1983). The Supreme Court explained
that discovery allows a more nuanced consideration of case-specific facts than FOIA and that
Exemption 5 must be interpreted as “a categorical rule” to effectuate FOIA’s goal of “expediting
disclosure by means of workable rules.” Id. at 28. So any limitation on who may invoke the
presidential communications privilege in discovery “does not automatically carry over into the
Exemption 5 analysis.” Lardner v. Dep’t of Justice, 2005 WL 758267 at *7 (D.D.C. 2005).
6
Without Circuit authority to decide the question, the Court is persuaded by earlier
decisions from this District that an agency has authority to invoke the presidential
communications privilege when making FOIA Exemption 5 withholdings. See, e.g., Elec.
Privacy Info. Ctr. v. Dep’t of Justice, 584 F. Supp. 2d 65, 80 (D.D.C. 2008) (holding that the
Department of Justice could invoke the presidential communications privilege under FOIA). In
keeping with the Supreme Court’s direction to apply Exemption 5 as a categorical rule, Judge
Bates has refused to adopt an “analysis that yields a different outcome depending on the way in
which a particular document is invoked.” Lardner, 2005 WL 758267 at *8. When an agency
invokes the deliberative process privilege as grounds for withholding a document under
Exemption 5, courts do not require that a high-level agency official invoke the privilege, even
though they do require a high-level agency official to invoke the privilege in discovery. Id. at
*8. This is because a categorical approach to the deliberative process privilege depends only “on
the factual content and purpose of the requested document.” See Dow Jones & Co., Inc. v. DOJ,
917 F.2d 571 (D.C. Cir. 1990). Similarly, a categorical approach to the presidential
communications privilege depends on the nature of the document and not on how the privilege is
invoked. Lardner, 2005 WL 758267 at *6-10. 5 Thus, the Court concludes that the Department
has adequately invoked the privilege without any action by the President or his staff.
Second, EPIC argues that it is not clear which President can invoke the privilege to
protect communications made during a prior administration. Memo. ISO Cross-Mot. Summary
5
Requiring the White House to invoke the presidential communications privilege in FOIA cases
would effectively burden it—and arguably the President himself—with the responsibility of
reviewing voluminous FOIA requests even though Congress exempted the White House from
FOIA obligations. See id. at *9-10; see also 5 U.S.C. § 552(a) (placing disclosure obligations on
each federal “agency,” a term that does not include the White House under the definition in 5
U.S.C. § 551(1)). This also militates against EPIC’s proposed approach. Lardner, 2005 WL
758267 at *9-10.
7
J. 22. EPIC appears to view this as an alternative argument that could defeat summary judgment
“even if the [Department] could invoke the privilege on behalf of the President without any
apparent White House involvement.” Id. But the Court has already determined that the
limitations on who can invoke the privilege do not apply in the FOIA context and that the
Department may invoke the privilege unilaterally based on the nature of the document in
question. Because Exemption 5 is a categorical rule that focuses on the document at issue rather
than the way that privilege is invoked, EPIC’s second argument also fails.
Third, EPIC argues that the Department has failed to show that then-President Obama or
any of his immediate White House advisers received the Predictive Analytics Report. Id. at 22-
23. According to EPIC, the privilege does not extend to communications with an Associate
White House Counsel. Id. at 23. But the case on which EPIC relies noted that even documents
created by a legal extern at the request of two Associate White House Counsel enjoyed the
protection of the presidential communications privilege. Judicial Watch, 365 F.3d at 1117(quoting In re Sealed Case, 121 F.3d at 758). Although EPIC claims that the privilege applies
only to communications to which the President or his immediate advisers are parties, it can also
apply to communications involving “members of an immediate White House adviser’s staff.” In
re Sealed Case, 121 F.3d at 752. Whether or not an Associate White House Counsel is “an
immediate White House adviser,” she is a member of the staff of the White House Counsel, who
is certainly himself an immediate White House adviser. So this argument also fails, and the
Department may withhold the Predictive Analytics Report.
B. The Deliberative Process Privilege Applies to the Other Challenged
Withholdings
To fall within the scope of the deliberative process privilege, a document must be “both
predecisional and deliberative.” Judicial Watch v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006). A
8
court considers a document “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.” Id. But
“agencies must disclose those portions of predecisional and deliberative documents that contain
factual information that does not inevitably reveal the government’s deliberations.” Public
Citizen, Inc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010).
The Department of Justice invokes the deliberative process privilege to withhold under
Exemption 5 research and briefing materials prepared by its own employees and by outside
consultants. Memo. ISO Pl.’s Mot. Summary J. 10-12. The Department explains that the
research materials are predecisional because they informed the Department’s drafting decisions
and decisions about what source materials to consult. Brinkmann Decl. ¶ 27. It also explains
that these materials are deliberative because “they reflect the thought processes and judgment of
[the Department’s Office of Legal Policy] staff as they canvass and cull from a spectrum of
available source materials, analyze the material, and distill it down for other [Office of Legal
Policy] staff working on the study and report and as such, show the internal development of the
Department’s decisions.” Id. ¶ 28. The Department’s affidavit states that it cannot segregate the
factual content from the deliberative content in these materials because the selection of source
material “is itself revelatory of the deliberative process.” Id. 30.
The Department also relies on the deliberative process privilege to withhold briefing
materials that its staff used to prepare the Attorney General for a media interview and to inform
internal Department staff about the Predictive Analytics Report in preparation for anticipated
internal and external meetings. Brinkmann Decl. ¶¶ 31-32. The Department explains that these
materials are predecisional because they inform decisions by the Department leaders who review
them and deliberative because they convey the drafters’ opinions and analysis. Id. ¶ 33. In other
9
words, briefing materials contain the drafter’s research and recommendations and reflect the
drafter’s assessment of what facts and issues are important and which do not matter. Id. ¶¶ 33,
35. The Department’s affidavit states that it could not effectively segregate the factual and
deliberative content in the briefing materials “[b]ecause the selection of facts and source material
is itself a part of the deliberative process.” Id. ¶ 35.
EPIC objects to the withholding of these materials on two grounds. First, EPIC objects
that the research and briefing materials are factual and so are not deliberative. Memo. ISO Pl.’s
Cross-Mot. Summary J. 13-16. Second, EPIC objects that the Department has not provided
sufficient grounds for treating research prepared by outside consultants as intra-agency records
subject to Exemption 5. Id. at 16-17. Neither objection prevents summary judgment for the
Department.
1. Disclosing the Factual Contents of the Withheld Documents Would Reveal the
Department’s Deliberative Process
EPIC acknowledges that an agency can withhold factual information if its disclosure
would inevitably reveal the government’s deliberations but argues that the selection of source
material is not revelatory of the deliberative process as a matter of law. Id. at 14-15. In support
of this view, EPIC cites Circuit precedent that observes:
Anyone making a report must of necessity select the facts to be mentioned in it;
but a report does not become a part of the deliberative process merely because it
contains only those facts which the person making the report thinks material. If
this were not so, every factual report would be protected as a part of the
deliberative process.
Playboy Enters., Inc. v. DOJ, 677 F.2d 931, 935 (D.C. Cir. 1982).
But the selection or organization of facts can be part of an agency’s deliberative process
and so exempt from FOIA. Ancient Coin Collectors Guild v. Dep’t of State, 641 F.3d 504, 513
(D.C. Cir. 2011). The deliberative process privilege protects a compilation of factual material
10
“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 v.
DOJ, 3 F.3d 1533, 1539 (D.C. Cir. 1993). This is because “[t]he work of the assistants in
separating the wheat from the chaff is surely just as much part of the deliberative process as is
the later milling by running the grist through the mind of the administrator.” Montrose Chem.
Corp. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974). A decisionmaker using an assistant to winnow
relevant facts from irrelevant facts is “similar in many ways to a judge’s use of his law clerk to
sift through the report of a special master or other lengthy materials in the record.” Id. at 78. It
is part of the decisionmaker’s deliberative process and not subject to public disclosure. Id.EPIC tries to distinguish Montrose, claiming that the sifting of information here is
different because it is unrelated to any decision and involves facts that are not in the public
record. Reply ISO Pl.’s Cross-Mot. Summary J. 7. But the research was prepared to influence
the decisions that went into drafting the Predictive Analytics Report, and the briefing was
prepared to influence decisions about the Report and about how to discuss it. And whether facts
are in the public record makes no legal difference. See Ancient Coin Collectors Guild, 641 F.3d
at 513 (“the legitimacy of withholding does not turn on whether the material . . . is already in the
public domain”). The Department has submitted an affidavit stating that the research and
briefing materials it seeks to withhold assemble relevant facts and disregard irrelevant facts,
reflecting the judgment of Department employees and consultants who prepared the materials to
help the Department decide what to report to the White House about evidence-based assessment
tools. Brinkmann Decl. ¶¶ 26-35. This places the research and briefing materials within the
scope of the deliberative process privilege absent contrary record evidence or evidence of agency
bad faith. See Military Audit Project, 656 F.2d at 738.
11
EPIC attempts to show bad faith in two ways. First, it claims that “even if some of the
factual material contained in the withheld pages were inextricably intertwined with deliberative
material, it beggars belief that not one single fact in 345 pages could be disentangled and
properly disclosed.” Memo. ISO Pl.’s Cross-Mot. Summary J. 15. But EPIC’s incredulity is not
evidence and fails to prove that the Department has withheld reasonably segregable information.
See 5 U.S.C. § 552(b)(9) (requiring agencies to release reasonably segregable portions of records
after deleting information that falls within a FOIA exemption). Second, EPIC attempts to show
bad faith by claiming that the Department’s redactions to two emails show that it has withheld
information unjustifiably or, alternatively, that the Department can easily segregate factual and
deliberative materials. Memo. ISO Pl.’s Cross-Mot. Summary J. 15-16. But this claim is also
speculative and fails to overcome the presumption of agency good faith. 6
Because EPIC has not overcome the presumption of good faith that the Department’s
affidavit enjoys, the Department’s affidavit is enough to put the research and briefing materials
within the scope of Montrose and Mapother. Because the materials fall within the scope of
Montrose and Mapother, the factual content in the materials is intertwined with the Department’s
deliberative process and properly withheld under Exemption 5. And this defeats EPIC’s
objection that the Department should disclose the materials because they are simply factual.
6
More specifically, EPIC speculates that it is “unlikely” an email that says it contains “data
points” could also contain a paragraph of “deliberations about how to respond to a particular
news article” as the Department asserted in support of its redactions. Id. at 15; see also id. Ex.
H; Vaughn Index 29. It also states that a different email’s description of an attachment
“appear[s]” to be an exhaustive description of the email’s own contents, so that if the attachment
contained “a review of the academics, their relevant articles, and what they say about their
respective projects” then the email could not have contained a paragraph “reflecting advice and
research.” Memo. ISO Pl.’s Cross-Mot. Summary J. 16; see also id. Ex. I; Vaughn Index 32.
12
2. Research by Outside Consultants Falls Within the Scope of the Consultant
Corollary
EPIC also argues that the Department’s withholding of consultant research unjustifiably
treats research prepared by outside consultants as intra-agency records subject to Exemption 5.
Id. at 16-17. But under controlling Circuit precedent, “When an agency record is submitted by
outside consultants as part of the deliberative process, and it was solicited by the agency, we find
it entirely reasonable to deem the resulting document to be an intra-agency memorandum for
purposes of determining the applicability of Exemption 5.” Nat’l Inst. Of Military Justice v.
DOD, 512 F.3d 677, 684 (D.C. Cir. 2008). The Department’s affidavit states that every withheld
consultant research record “reflect[s] advice solicited by [the Department’s Office of Legal
Policy] as part of the drafting and research process for the Predictive Analytics Report.”
Brinkmann Decl. ¶ 27.
EPIC notes that the so-called consultant corollary applies only to consultants who are not
advocating their own interests. Memo. ISO Pl.’s Cross-Mot. Summary J. 16-17; see also
Competitive Enter. Inst. v. Office of Sci. & Tech. Policy (“CEI”), 161 F. Supp. 3d 120, 133
(D.D.C. 2016). The Department represents that the consultants “were not advocating for a
government benefit at the expense of others; rather they were simply responding to and
cooperating with [the Office of Legal Policy’s] request for assistance.” Brinkmann Decl. ¶ 19.
But EPIC says this is conclusory, like the agency representations in CEI. Memo. ISO Pl.’s
Cross-Mot. Summary J. 17.
The difference is that in CEI there was affirmative evidence suggesting that the
consultant had a professional, reputational, and financial interest in promoting her theory of
climate change to the agency that consulted her, while here there is nothing to overcome the
presumption of good faith that the agency’s declaration enjoys. See CEI, 161 F. Supp. 3d at 133-
13
34. The other cases that EPIC notes in passing also involved affirmative evidence of self-interest
that the agency declarations did not address adequately. See COMPTEL v. FCC, 910 F. Supp. 2d
100, 119 (D.D.C. 2012) (requiring evidence to support FCC’s claim that a company it was
investigating had given it disinterested advice); Ctr. for Int’l Envtl. Law v. Office of U.S. Trade
Representative, 237 F. Supp. 2d 17, 26 (D.D.C. 2002) (rejecting agency’s claim that Chile had
given it disinterested advice about a trade agreement between Chile and the United States).
EPIC has identified no evidence suggesting that the Department has withheld records submitted
by alleged consultants who were advocating their own interests. So its second objection also
fails. The Department is entitled to summary judgment on its withholding of internal and
consultant research materials.
C. EPIC Has Not Overcome the Presumption That the Department Disclosed
Reasonably Segregable Information
“Agencies are entitled to a presumption that they complied with the obligation to disclose
reasonably segregable material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.
Cir. 2007). The Department’s affidavit states that the Department “conducted a line-by-line
review of all of the records and released any portions thereof that were not protected by an
applicable FOIA exemption, often redacting only portions of sentences or paragraphs . . . .”
Brinkmann Decl. ¶ 46. EPIC’s efforts to overcome this presumption and the Department’s
affidavit mirror the arguments about the applicability of Exemption 5 that I have already
rejected. So the Court declines EPIC’s invitation to conduct an in camera inspection of the
records the Department has withheld and instead rely on the Department’s affidavit and the
unrebutted presumption that the Department disclosed all reasonably segregable materials.
Sussman, 494 F.3d at 1117 (requiring evidence that the agency did not segregate to rebut
presumption of regularity); see also Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996) (noting
14
that in camera review burdens the courts, undermines the adversarial nature of FOIA litigation,
and “should not be resorted to as a matter of course”).
IV. CONCLUSION
For the reasons stated above, the Department of Justice’s Motion for Summary Judgment
will be granted and the Electronic Privacy Information Center’s Cross-Motion for Summary
Judgment will be denied. A separate order will issue.
2018.08.15
16:37:36 -04'00'
Dated: August 15, 2018 TREVOR N. MCFADDEN, U.S.D.J.
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