American Center for Law and Justice v. Department of Justice ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CENTER FOR LAW AND
JUSTICE,
Plaintiff,
v. Civil Action No. 16-2188 (TJK)
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff American Center for Law and Justice (“ACLJ”) has requested records from
Defendant Department of Justice (“DOJ”) under the Freedom of Information Act (“FOIA”), 5
U.S.C. § 552. The records relate to a June 2016 meeting between then-Attorney General Loretta
Lynch and former President Bill Clinton that occurred on board an airplane in Arizona. The
parties have cross-moved for summary judgment. After initially agreeing to limit the scope of
the instant motions to the issue of DOJ’s withholdings of certain material under FOIA’s
exemptions, ACLJ now also argues that DOJ failed to conduct an adequate search. DOJ argues
that both its search and its withholdings were proper.
For the reasons explained below, DOJ’s motion for summary judgment will be granted
in part and denied in part, and ACLJ’s cross-motion will be denied. DOJ shall make a
supplemental submission and renewed motion as set forth below by October 9, 2018. ACLJ
shall file any response and cross-motion by October 23, 2018.
Factual and Procedural Background
According to the complaint, on June 27, 2016, then-Attorney General Lynch and former
President Clinton met aboard a parked airplane at Sky Harbor International Airport in Phoenix,
Arizona (the “airplane meeting”). See ECF No. 1 (“Compl.”) ¶ 7. President Clinton’s wife
Hillary Clinton, then a candidate for President, was connected to an ongoing DOJ investigation
at the time. See ECF No. 23 (“Pl.’s Br.”) at 2. Given that context, the airplane meeting quickly
became the subject of significant press attention. See id. at 10-11.
On July 15, 2016, ACLJ filed a FOIA request with DOJ that sought various categories of
documents relating to the airplane meeting. See ECF No. 22-1 (“Brinkmann Decl.”) ¶ 3 & Ex.
A. On November 2, 2016, having not yet received any response from DOJ, ACLJ filed the
instant action. Compl. On November 18, 2016, DOJ acknowledged receipt of the FOIA request.
Brinkmann Decl. ¶ 5 & Ex. B. In July and August 2017, DOJ made two productions totaling
413 pages to ACLJ. See id. ¶¶ 6-7 & Exs. C-D. The productions included redactions that DOJ
made pursuant to FOIA Exemptions 5, 6, and 7(C). See id. DOJ informed ACLJ that, in its
view, these productions satisfied its obligations under FOIA. Id. ¶ 7 & Ex. D.
The parties met and conferred to discuss the productions. ECF No. 20 (“9/27/17 Status
Report”) ¶ 4. During the meet-and-confer process, ACLJ identified several concerns about
DOJ’s withholdings. See id. ¶ 5. In response, DOJ revised the redactions it had made to two
documents. Id. ¶ 6. ACLJ informed DOJ that it continued to dispute DOJ’s invocation of the
deliberative-process privilege under Exemption 5 for certain documents, and that, more
generally, it continued to challenge DOJ’s compliance with FOIA’s segregability requirement for
the withholdings under Exemption 5. See ECF No. 23-1 (“Southerland Decl.”) ¶ 3; ECF No. 23-
3 (email between counsel for the parties).
On September 27, 2017, the parties filed a joint status report that set forth an agreed-upon
plan for further proceedings in the case. 9/27/17 Status Report. The report explained that the
parties had “determined that motions practice will be necessary to resolve Plaintiff’s remaining
2
objections to Defendant’s withholdings.” Id. ¶ 7. The parties proposed a briefing schedule for
motions for summary judgment, which the Court adopted by minute order. See id.; Minute
Order of October 12, 2017.
The parties then filed the instant motions and related briefing. ECF No. 21; ECF No. 21-
1 (“Def.’s Br.”); Pl.’s Br.; ECF No. 25 (“Def.’s Reply”); ECF No. 27 (“Pl.’s Reply”). In its
opening brief, DOJ sought only to support the redactions made to 11 documents, which it
understood to be the only documents still in dispute. Def.’s Br. at 2 & n.1. In its cross-motion,
ACLJ sought to broaden the dispute in two respects. First, it explained that DOJ had
misinterpreted the scope of its objections to DOJ’s withholdings, which encompassed not only
DOJ’s Exemption 5 redactions in the 11 documents but also, more generally, whether DOJ had
adequately segregated “factual information” in all redacted documents. Pl.’s Br. at 5 n.1.
Second, despite the parties’ earlier agreement that only DOJ’s redactions were at issue, ACLJ
argued that DOJ’s search was inadequate, as well. Id. at 11-12. ACLJ explained that, since the
9/27/17 Status Report, it had received a document from another agency that it believed DOJ
should have produced in response to the FOIA request. Id. In its reply, DOJ provided additional
information about its search terms and withholdings. See Def.’s Reply; ECF No. 25-1 (“Second
Brinkmann Decl.”); ECF No. 25-2 (“Def.’s Ex. A”).
Legal Standard
Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “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). “Summary judgment is appropriately
granted when, viewing the evidence in the light most favorable to the non-movants and drawing
all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.”
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Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C.
Cir. 2016).
“[T]he vast majority of FOIA cases can be resolved on summary judgment . . . .”
Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Congress enacted
FOIA in 1966 to “pierce the veil of administrative secrecy and to open agency action to the light
of public scrutiny.” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep’t of Air
Force v. Rose, 425 U.S. 352, 361 (1976)). “FOIA ‘mandates that an agency disclose records on
request, unless they fall within one of nine exemptions.’” EPIC v. DHS, 777 F.3d 518, 522
(D.C. Cir. 2015) (quoting Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011)).
In FOIA cases, “to obtain summary judgment the agency must show that it made a good
faith effort to conduct a search for the requested records, using methods which can be reasonably
expected to produce the information requested.” Mobley v. CIA, 806 F.3d 568, 580 (D.C. Cir.
2015) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). “The court
may rely on a ‘reasonably detailed affidavit, setting forth the search terms and the type of search
performed, and averring that all files likely to contain responsive materials (if such records exist)
were searched.’” Id. at 580-81 (quoting Oglesby, 920 F.2d at 68). “The court applies a
‘reasonableness’ test to determine the ‘adequacy’ of a search methodology, consistent with
congressional intent tilting the scale in favor of disclosure . . . .” Morley, 508 F.3d at 1114
(quoting Campbell v. DOJ, 164 F.3d 20, 27 (D.C. Cir. 1998)).
In addition, if the agency has invoked any of FOIA’s exemptions, the “burden is on the
agency to justify withholding the requested documents, and the FOIA directs district courts to
determine de novo whether non-disclosure was permissible.” EPIC, 777 F.3d at 522. “Summary
judgment is warranted on the basis of agency affidavits when the affidavits describe the
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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 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)). That is, the agency must provide a “logical” or “plausible” justification for the
exemption. Id. (quoting Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)). The agency cannot
rely on “conclusory and generalized allegations of exemptions.” Morley, 508 F.3d at 1115
(quoting Founding Church of Scientology of Wash., D.C., Inc. v. NSA, 610 F.2d 824, 830 (D.C.
Cir. 1979)).
FOIA further requires that “[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). Before approving the government’s withholdings, the court has an
affirmative duty to ensure that the segregability requirement is satisfied, even if it must do so sua
sponte. See Morley, 508 F.3d at 1123.
Analysis
For the reasons explained below, the Court will grant DOJ’s motion for summary
judgment except as it relates to two particular documents. The Court will order DOJ to provide
supplemental information justifying the redactions in those two documents. ACLJ’s motion will
be denied.
A. The Adequacy of DOJ’s Search
ACLJ argues that DOJ’s search was inadequate because the search failed to turn up a
responsive document that subsequently came into ACLJ’s possession via another FOIA request.
See Pl.’s Br. at 11-12. And ACLJ’s reply adds two additional grounds for this argument: that
DOJ (1) used search terms that were too limited, and (2) improperly narrowed the time frame of
5
certain searches. See Pl.’s Reply at 8-9. The Court concludes, however, that ACLJ waived its
right to challenge the adequacy of DOJ’s search in the 9/27/17 Status Report.
Parties may either forfeit or waive their rights during the course of litigation.
“[F]orfeiture is the failure to make the timely assertion of a right[;] waiver is the intentional
relinquishment or abandonment of a known right.” Hamer v. Neighborhood Hous. Servs. of
Chi., 138 S. Ct. 13, 17 n.1 (2017) (alterations in original) (quoting United States v. Olano, 507
U.S. 725, 733 (1993)) (internal quotation marks omitted). “Whether a particular right is
waivable; whether the [waiving party] must participate personally in the waiver; whether certain
procedures are required for waiver; and whether the [party’s] choice must be particularly
informed or voluntary, all depend on the right at stake.” Olano, 507 U.S. at 733. In some
contexts, waiver is possible only if accompanied by extensive procedural protections ensuring
that it is knowing and voluntary. That is true, for example, when a criminal defendant, whose
liberty is at stake, waives important constitutional rights. In civil cases, important constitutional
rights may be waived before the parties ever step foot in court, although there must be clear
evidence that the waiver was knowing, voluntary, and intelligent. See Fuentes v. Shevin, 407
U.S. 67, 94-96 (1972); D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-87 (1972).
But once the parties have appeared in a civil matter, they routinely agree to narrow the
issues in dispute or to give up important procedural rights. If they could not, civil litigation
would not serve its purpose of offering a “just, speedy, and inexpensive determination of every
action.” Fed. R. Civ. P. 1. Accordingly, the Federal Rules of Civil Procedure require courts to
hold pretrial conferences at which the parties, under the court’s supervision, will “formulat[e]
and simplify[] the issues.” Fed. R. Civ. P. 16(c)(2)(A). When the parties make representations
at a conference about which issues remain outstanding, they may fairly be held to those oral
6
representations. See Genereux v. Raytheon Co., 754 F.3d 51, 57-59 (1st Cir. 2014). The rules
also allow the parties to give up important procedural rights orally or in writing. For example,
the Seventh Amendment right to a jury trial may be waived in an oral or written stipulation. See
Fed. R. Civ. P. 39(a)(1). Indeed, litigants can at any time dismiss a civil action in its entirety,
with prejudice, simply by signing and filing a joint stipulation to that effect. Fed. R. Civ. P.
41(a)(1)(A)(ii).
These considerations compel the conclusion that, where sophisticated parties to a FOIA
case have agreed to narrow the issues in a written status report, they generally may be held to
their agreement under traditional waiver principles. Given the volume of FOIA litigation in this
District, and the fact that FOIA plaintiffs located anywhere in the country may file here, see 5
U.S.C. § 552(a)(4)(B), written status reports often play the same role in FOIA cases as pretrial
conferences do in other civil litigation. Just as a party may agree to narrow the case during a
pretrial conference, see Genereux, 754 F.3d at 57-59, a FOIA plaintiff may agree to do so in a
written status report. Having voluntarily narrowed the case to a set of agreed-upon issues, the
plaintiff may be said to have waived the others.
Holding parties to such agreements is also consistent with FOIA itself. As Judge
McFadden persuasively explained in a recent opinion, FOIA’s text contemplates that plaintiffs
will narrow the scope of their requests. DeFraia v. CIA, 311 F. Supp. 3d 42, 47-48 (D.D.C.
2018). Thus, when a plaintiff narrows his FOIA request in a joint status report, it supersedes any
broader request set forth in the plaintiff’s complaint. Id.; see also Gilman v. DHS, 32 F. Supp. 3d
1, 22-24 (D.D.C 2014) (holding parties to narrowing of request in joint status report and
subsequent order); People for Am. Way Found. v. DOJ, 451 F. Supp. 2d 6, 11-12 (D.D.C. 2006)
(holding plaintiff may narrow request even without defendant’s agreement). Similarly, where
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a plaintiff agrees in a joint status report not to challenge the adequacy of the government’s
search, she effectively narrows her request to cover only the documents the government has
already located.
Here, ACLJ waived the adequacy issue by voluntarily agreeing, in the 9/27/17 Status
Report, to narrow the scope of the case. As ACLJ (a sophisticated litigant) no doubt
understands, FOIA cases often turn on two issues: the adequacy of the government’s search, and
the propriety of the government’s withholding of responsive material. The 9/27/17 Status
Report—which ACLJ’s counsel signed electronically and uploaded to the Court’s electronic
filing system on behalf of both parties—could not have been clearer that, by agreement of the
parties, only the second issue remained in dispute. The purpose of the status report was “to
propose an agreed-upon briefing schedule to address the remaining unresolved issues.” 9/27/17
Status Report at 1 (emphasis added). It explained that the parties had conferred “in an attempt to
address and, if possible, resolve any remaining issues with regards to Plaintiff’s FOIA request,”
namely certain “objectionable withholdings” ACLJ had identified. Id. ¶ 4 (emphasis added).
The report further explained that, after reaching an impasse, the parties had “determined that
motions practice [would] be necessary to resolve Plaintiff’s remaining objections to Defendant’s
withholdings.” Id. ¶ 7 (emphasis added). On the basis of the status report, the Court adopted the
parties’ proposed briefing schedule by minute order dated October 12, 2017. The report and
subsequent order thus left the parties and the Court in agreement on the status of the case: the
parties had resolved any dispute over the adequacy of the search and would litigate the only
remaining issues (concerning the validity of DOJ’s withholdings) in the forthcoming summary
judgment motions. In short, by agreeing to limit the Court’s involvement to deciding the parties’
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dispute about DOJ’s withholdings, ACLJ knowingly and voluntarily waived all other issues it
might reasonably have anticipated, including any challenge to the adequacy of DOJ’s search.
Even where a waiver is knowing and voluntary, courts will sometimes decline to enforce
the waiver where it would be unjust to do so. For example, when a criminal defendant has
waived his right to appeal, courts will not enforce the waiver if there is a “colorable claim” of
“ineffective assistance of counsel,” or if a procedural sentencing error “results in a miscarriage of
justice.” United States v. Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015) (quoting United States v.
Guillen, 561 F.3d 527, 530-31 (D.C. Cir. 2009)). Similarly, where the parties to a civil action
have narrowed the issues in a final pretrial order, it may nonetheless be modified to prevent
“manifest injustice.” Harper v. Albert, 400 F.3d 1052, 1063 (7th Cir. 2005) (quoting Fed. R.
Civ. P. 16(e)). Another judge in this District has held that, at a minimum, a showing of good
cause is required to reintroduce an issue that has been explicitly waived in FOIA litigation.
Shapiro v. DOJ, No. 13-555 (RDM), 2016 WL 3023980, at *6-7 (D.D.C. May 25, 2016); see
also Fed. R. Civ. P. 16(b)(4) (providing for modification of scheduling order “only for good
cause and with the judge’s consent”).
ACLJ claims to have abandoned its agreement, memorialized in the 9/27/17 Status
Report, that the adequacy of DOJ’s search was not in dispute because it subsequently received,
from another agency, a single responsive document that DOJ had not produced. See Southerland
Decl. ¶¶ 5-7. Until that time, it claims, it had “no reason to believe” that DOJ’s search was
inadequate. Id. ¶ 4. The Court finds this an unpersuasive basis to let ACLJ escape from its
agreement. Adequacy of the government’s search is a potential issue in every FOIA case. ACLJ
had every opportunity to discuss DOJ’s search methodology with DOJ during the meet-and-
confer process. And after meeting and conferring, ACLJ represented that it was not challenging
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DOJ’s search. Moreover, there is no suggestion here that DOJ procured ACLJ’s agreement by
misinforming ACLJ about the scope of its search. In this context, the fact that DOJ failed to
produce one particular responsive document is immaterial. Indeed, it is well established that
such failures do not render the government’s search unreasonable. See, e.g., Iturralde v.
Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). (And in fact, but for a technical
glitch, DOJ’s search terms would have uncovered that document. See Def.’s Reply at 12-13.)
Thus, there is nothing unjust about holding ACLJ to its prior agreement and finding that it has
waived its challenge to the adequacy of DOJ’s search, nor is there good cause for allowing ACLJ
to reintroduce the issue.
B. DOJ’s Withholdings
ACLJ has made three challenges to DOJ’s withholdings under Exemption 5. 1 First,
ACLJ asserts that DOJ has improperly failed to provide a Vaughn index to the Court. See Pl.’s
Br. at 4-6; Pl.’s Reply at 2-4. Second, ACLJ asserts that DOJ has made improper redactions
under Exemption 5 in 11 specified documents. See Pl.’s Br. at 6-11; Pl.’s Reply at 4-6. Third,
ACLJ asserts that DOJ’s redactions under Exemption 5 (apparently including redactions in the
11 specified documents and other documents that neither party has submitted to the Court)
generally fail to comply with FOIA’s segregability requirement because DOJ has withheld
“factual” material not protected by the deliberative-process privilege. See Pl.’s Br. at 5 n.1;
Southerland Decl. ¶ 3; Pl.’s Reply at 6-8. The Court will address each argument in turn.
1
In the 9/27/17 Status Report, the parties suggested that withholdings under Exemption 6 might
also be at issue. See 9/27/17 Status Report ¶¶ 3-4. Accordingly, DOJ introduced a declaration
supporting the redactions under Exemption 6 in the one document it understood ACLJ to have
challenged on this ground. See ECF No. 22-2 (Declaration of David M. Hardy). In the face of
this evidence, ACLJ has abandoned its challenge to Exemption 6. See ECF No. 23-5 ¶ 8. In
light of DOJ’s uncontroverted declaration, it is entitled to summary judgment on Exemption 6.
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1. Vaughn Index
DOJ has not provided a Vaughn index to the Court in this action. In cases involving the
deliberative-process privilege, courts in this District often require a Vaughn index containing
several key pieces of information for each document in dispute: “(1) what deliberative process is
involved, (2) the role played by the documents in issue in the course of that process, and (3) the
nature of the decisionmaking authority vested in the office or person issuing the disputed
documents, and the positions in the chain of command of the parties to the documents.” Ctr. for
Biological Diversity v. EPA, 279 F. Supp. 3d 121, 147 (D.D.C. 2017) (internal citations,
quotation marks, and alterations omitted). Contrary to ACLJ’s arguments, however, the
law does not inflexibly require a Vaughn index in every FOIA case. As the D.C. Circuit
has explained:
[W]e focus on the functions of the Vaughn index, not the length of
the document descriptions, as the touchstone of our analysis.
Indeed, an agency may even submit other measures in combination
with or in lieu of the index itself. Among other things, the agency
may submit supporting affidavits or seek in camera review of
some or all of the documents “so long as they give the reviewing
court a reasonable basis to evaluate the claim of privilege.” Any
measure will adequately aid a court if it “provide[s] a relatively
detailed justification, specifically identif[ies] the reasons why a
particular exemption is relevant and correlat[es] those claims with
the particular part of a withheld document to which they apply.”
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 146 (D.C. Cir. 2006) (alterations, except first, in
original) (citations omitted) (quoting Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994); Mead
Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
In this case, DOJ has supported its invocation of Exemption 5 in other ways. It has
provided a declaration describing the categories of information it has withheld, and DOJ’s basis
for asserting the deliberative-process privilege over each category. Brinkmann Decl. ¶¶ 13-17.
It has also, in a supplemental declaration, identified the control number of each document
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produced to ACLJ with redactions, broken down by category. Second Brinkmann Decl. ¶ 31.
Finally, DOJ has filed on the record copies of the 11 specific documents ACLJ has challenged,
with the redactions applied. Def.’s Ex. A. 2
The Court concludes that, with two exceptions noted below, DOJ has provided sufficient
information to evaluate its invocation of the deliberative-process privilege. Therefore, the Court
will not require DOJ to submit a Vaughn index.
2. Specific Documents in Dispute
The parties have introduced a set of 11 documents with disputed withholdings under
Exemption 5. Def.’s Ex. A. In each case, DOJ has redacted information under the deliberative-
process privilege, on the ground that the documents contain DOJ officials’ discussions about
how to handle press inquiries about the airplane meeting. See Brinkmann Decl. ¶ 13.
“The deliberative process privilege protects agency documents that are both predecisional
and deliberative.” Judicial Watch, 449 F.3d at 151. A document 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.’” Id. (quoting Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980)). The purpose of the rule is “to encourage ‘honest and frank
communication within the agency’ without fear of public disclosure.” Id. (quoting Coastal
States Gas, 617 F.2d at 866). While the D.C. Circuit does not appear to have addressed the
2
ACLJ accuses DOJ of omitting a “crucial document” in its submission to the Court. Pl.’s
Reply at 5. The Court considers this a serious accusation and has carefully compared DOJ’s
version of the documents in dispute, attached as Exhibit A to its reply, Def.’s Ex. A, with
ACLJ’s version, attached as Exhibit A to its cross-motion, ECF No. 23-2 (“Pl.’s Ex. A”). ACLJ
attaches only two documents that DOJ does not. The first is an email that contains redactions
under Exemption 6, but not under Exemption 5. See id. at 22. It is unsurprising that DOJ did not
provide this document: as already mentioned, ACLJ has abandoned its challenge to Exemption 6
in the face of a declaration clearly supporting it. See supra note 1. The second document is an
email that does not contain any redactions whatsoever. See Pl.’s Ex. A at 23. Thus, ACLJ’s own
submission does not bear out the accusation it has made.
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application of this privilege to public-relations issues, the overwhelming consensus among
judges in this District is that the privilege protects agency deliberations about public statements,
including the use of talking points. See, e.g., Judicial Watch, Inc. v. U.S. Dep’t of State, 306 F.
Supp. 3d 97, 115 (D.D.C. 2018); Comm. on Oversight & Gov’t Reform, U.S. House of Rep. v.
Lynch, 156 F. Supp. 3d 101, 111-12 (D.D.C. 2016). The Court agrees and thinks this conclusion
is inescapable: if agency deliberations about public statements were FOIA-able, then agencies
would be hamstrung in their dealings with the press, defeating the very transparency FOIA aims
to foster. Nonetheless, as another judge in this District has concluded, agencies must provide
context about the particular press-related deliberations at issue and cannot rely solely on
conclusory labels (such as “draft press release”). See Heffernan v. Azar, No. 15-cv-2194 (RBW),
2018 WL 3150214, at *20-21 (D.D.C. June 27, 2018).
When read in light of DOJ’s affidavits, the documents at issue largely speak for
themselves to justify DOJ’s redactions. For example, DOJ has redacted portions of email
communications among officials from different DOJ offices—the Office of the Attorney
General, Office of Legislative Affairs, and Office of Press Affairs—discussing how to respond to
particular media inquiries identified in the unredacted text. See, e.g., Def.’s Ex. A at 47-54
(document 0.7.9269.5186). In another email chain, officials from the Office of the Attorney
General discuss providing “guidance” to the FBI about a similar press inquiry; the content of this
guidance is redacted. See id. at 16-17 (document 0.7.9269.5280). 3 DOJ’s declarant confirms
3
ACLJ suggests that, because the FBI is a separate agency, the deliberative-process privilege
does not cover this email. See Pl.’s Reply at 5 n.5. But Exemption 5, by its own terms, reaches
“inter-agency” communications. 5 U.S.C. § 552(b)(5). Thus, the deliberative-process privilege
has been held to protect an opinion prepared by DOJ’s Office of Legal Counsel for the FBI.
Elec. Frontier Found. v. DOJ, 739 F.3d 1, 7-10 (D.C. Cir. 2014). In fact, the deliberative-
process privilege under Exemption 5 sometimes reaches communications with private parties.
See Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 680-81 (D.C. Cir. 2008).
13
that the redactions cover portions of emails that “evaluate and analyze press coverage and
make recommendations and/or consider possible options in responding to press and other
inquiries.” Brinkmann Decl. ¶ 14. The Court thus concludes that, apart from two exceptions
set forth below, DOJ has met its burden to show that the redactions reflect the “give-and-take of
the consultative process” over how DOJ should respond to media inquiries about the
airplane meeting.
ACLJ advances several arguments for lifting the redactions, but none has merit. ACLJ
argues that the deliberative-process privilege, which is qualified, is overcome here by the
public’s need for the information. Pl.’s Br. at 10-11. This argument fails as a matter of law. As
the D.C. Circuit has explained, while the privilege is qualified, this “characteristic of the
deliberative process privilege is not at issue in FOIA cases.” In re Sealed Case, 121 F.3d 729,
737 n.5 (D.C. Cir. 1997). Similarly, while attorney work product enjoys only a qualified
protection from discovery in civil litigation, the qualified nature of that protection is irrelevant
under FOIA. See Williams & Connolly v. SEC, 662 F.3d 1240, 1243 (D.C. Cir. 2011) (citing
FTC v. Grolier, Inc., 462 U.S. 19, 26-27 (1983)).
Next, ACLJ argues that DOJ has improperly redacted “talking points” in its production.
Pl.’s Br. at 7-8. Several emails at issue include various iterations of a set of talking points
prepared for Attorney General Lynch, who used them in a June 28 press conference. See, e.g.,
Def.’s Ex. A at 2-7 (document 0.7.9269.5275). Some are plainly drafts circulated to solicit
comments. See, e.g., id. at 36-38 (email from Melanie Newman dated June 28, 2016, at 2:59
p.m.). 4 Officials eventually settled on a “[f]inal version” of the talking points in advance of the
4
The Court notes that neither ACLJ nor DOJ has provided a version of this email chain bearing a
control number. See Def.’s Ex. A at 24; Pl.’s Ex. A at 34. This omission is particularly
14
press conference. Id. at 2 (document 0.7.9269.5275). An employee from the Office of the
Attorney General reported that Attorney General Lynch “stuck to the talking points” at the June
28 press conference. Id. at 40 (document 0.7.9269.5166). On June 29, the Director of DOJ’s
Office of Press Affairs forwarded the talking points to an official in the Office of Legislative
Affairs, noting that “OLA is going to get questions about this and I think the talking points we
drafted will be useful for your purposes.” Id. at 25. The Director also subsequently forwarded
the talking points to other employees alongside the transcripts of press appearances by Attorney
General Lynch on June 28 and June 29. See id. at 10-13 (documents 0.7.9269.6298 and
0.7.9269.6923). The talking points are fully redacted in each of these iterations.
ACLJ asserts that many versions of the talking points, in particular the “final” versions
and versions that were shared after the Attorney General’s remarks, were not predecisional. Pl.’s
Br. at 7-8; Pl.’s Reply at 4-6. This argument fails to appreciate the nature of talking points
generally and the particular context surrounding the June 28 talking points. Talking points are
typically documents “prepared by [government] employees for the consideration of
[government] decision-makers.” Judicial Watch, Inc. v. U.S Dep’t of Commerce, 337 F. Supp.
2d 146, 174 (D.D.C. 2004). There may be some circumstances where “talking points” are
intended by agency decisionmakers to be followed literally such that they, in and of themselves,
represent the agency’s decision about what to say. But the “final” version of talking points
prepared by more junior staffers for a more senior official is rarely the final decision about what
the senior official will say. See ACLU v. DHS, 738 F. Supp. 2d 93, 111-12 (D.D.C. 2010)
(concluding that “final” talking points fell within deliberative-process privilege). Rather, a
frustrating on the part of DOJ, which chided ACLJ for failing to include control numbers in its
submission. See Def.’s Reply at 3 n.3. Nonetheless, the Court concludes that this omission does
not interfere with its ability to decide the instant motions.
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senior official—especially one as high-ranking as the Attorney General—may elect to use all,
some, or none of the talking points prepared for her. Perhaps to the chagrin of their junior
staffers, senior officials have a tendency to improvise. And even when senior officials do follow
their talking points, they often do not recite the points word-for-word. The particular factual
context surrounding the June 28 talking points, which were written for Attorney General Lynch
but concerned events she had personally witnessed, strongly suggests that the talking points were
no more than advice from subordinates. The final decision was what Attorney General Lynch
actually said to the media, which is, of course, already a matter of public record.
Nor does the subsequent use of the talking points modify this analysis. The point of the
deliberative-process privilege is to protect internal agency deliberations; it would make no sense
for the privilege to turn on whether the internal advice was ultimately followed. As the D.C.
Circuit has explained:
[T]he writer [of a draft] does not know at the time of writing
whether the draft will evolve into a final document. But the writer
needs to know at the time of writing that the privilege will apply
and that the draft will remain confidential, in order for the writer to
feel free to provide candid analysis. A privilege contingent on
later events—such as whether the draft ultimately evolved into a
final agency position—would be an uncertain privilege, and as the
Supreme Court has said, an uncertain privilege is “little better than
no privilege at all.”
Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014) (quoting Upjohn Co. v. United
States, 449 U.S. 383, 393 (1981)). That is, the deliberative-process privilege should be judged
based on the purpose of the document when it was created, not in hindsight. The privilege over a
predecisional document is “waived” only when the agency publishes the document or expressly
adopts the document’s reasoning as its own. See Elec. Frontier Found. v. DOJ, 739 F.3d 1, 10-
12 (D.C. Cir. 2014).
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Applied here, these principles mean that the talking points remain protected even though
Attorney General Lynch followed them and even though they were repurposed for other press
inquiries. A government employee drafting talking points to advise a senior official needs to
know that her advice will remain privileged regardless of whether the official ultimately sticks to
the script or decides to extemporize. It is accordingly of no moment that Attorney General
Lynch ultimately “stuck to the talking points”—the point is that she might not have. And given
that talking points are typically used on the fly, it would rarely be the case that an official
formally “adopts” talking points simply by relying on them; certainly, no facts suggest that to be
true here. Moreover, sticking to talking points often does not entail a verbatim recitation, leaving
open the possibility that “a simple comparison” of the talking points with the official’s public
remarks would reveal the agency’s deliberations. See Mapother v. DOJ, 3 F.3d 1533, 1538
(D.C. Cir. 1993). Finally, the mere fact that the June 28 talking points were forwarded in later
emails does not deprive them of protection. “Post-decisional documents properly fall under the
deliberative[-]process privilege when they recount or reflect pre-decisional deliberations.” Am.
Immigration Council v. DHS, 21 F. Supp. 3d 60, 75 (D.D.C. 2014) (alteration in original)
(quoting Judicial Watch v. U.S. Dep’t of Treasury, 796 F. Supp. 2d 13, 31 (D.D.C. 2011)). That
applies in full to the emails forwarding the June 28 talking points.
Notwithstanding the foregoing analysis, two documents lack adequate context for the
Court to undertake a proper evaluation of the deliberative-process privilege. The first, bearing
control number 0.7.9269.5105, is an email dated July 11, 2016, attaching a document called
“Top Line TPs (Final).” Def.’s Ex. A at 20-23. The attached talking points are redacted in full.
See id. The Court has no context for these talking points, unlike the June 28 talking points
discussed above. In particular, the Court has no basis to assess whom the talking points were
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drafted for, how they were used, or what their subject matter was (apart from the fact that they
somehow related to the airplane meeting). Thus, DOJ has not provided “the minimum facts
needed for the invocation of the deliberative process privilege.” Heffernan, 2018 WL 3150214,
at *21.
The second document, bearing control number 0.7.9269.6094, is an email chain dated
June 30, 2016. Def.’s Ex. A at 14-15. The chain began when a news outlet emailed DOJ
requesting an interview with Attorney General Lynch about the airplane meeting. See id. In an
internal email, the Director of DOJ’s Office of Press Affairs advised as follows: “Decline.” Id.
Two subsequent emails in the chain, consisting of short messages between the Director and
another Office of Press Affairs employee, are redacted. See id. Given that DOJ had already
decided how to respond to the particular request, it is unclear how these messages are
“predecisional” as required to invoke the deliberative-process privilege. It is possible that
they are—for example, the employees may have been discussing how to respond to similar
requests in the future. Nonetheless, the information provided to the Court is insufficient to make
that determination.
Accordingly, the Court will grant summary judgment to DOJ on this issue, except that it
will order DOJ to file a supplemental declaration and renewed motion for summary judgment
regarding documents 0.7.9269.5105 and 0.7.9269.6094.
3. Segregability
ACLJ has also challenged DOJ’s compliance with FOIA’s segregability requirement.
Segregability is adjudicated using a burden-shifting framework. Agencies must provide a
“detailed justification” for the non-segregability of the withheld information, although not “so
much detail that the exempt material would be effectively disclosed.” Johnson v. Exec. Office
for U.S. Att’ys, 310 F.3d 771, 776 (D.C. Cir. 2002). Agencies typically meet their initial burden
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by providing a Vaughn index and “a declaration attesting that the agency released all segregable
material.” Judicial Watch, Inc. v. DOJ, 20 F. Supp. 3d 260, 277 (D.D.C. 2014). Once that is
accomplished, “[a]gencies 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 plaintiff must then produce a “quantum of evidence” rebutting this
presumption, at which point “the burden lies with the government to demonstrate that no
segregable, nonexempt portions were withheld.” Id.
ACLJ has raised the issue of segregability not only in the 11 particular documents
discussed above, but also in connection with Exemption 5 more generally. Pl.’s Br. at 5 n.1;
Pl.’s Reply at 7 n.6. As discussed above, DOJ has provided declarations and other information
that serve the function of a Vaughn index in this case. See supra pp. 11-12. DOJ’s declarations
attest that it conducted a line-by-line review of each document and released all segregable
information. Brinkman Decl. ¶ 18; Second Brinkman Decl. ¶ 32. The declarations also explain
that, in the talking points and press statements, factual content was generally intertwined with the
advice being given and thus could not be segregated. Brinkman Decl. ¶ 18; Second Brinkman
Decl. ¶ 32. The Court concludes that this showing is sufficient to trigger the presumption in
favor of compliance with FOIA’s segregability requirement. Cf. Juarez v. DOJ, 518 F.3d 54, 61
(D.C. Cir. 2008) (holding government’s declaration, which explained the way in which exempt
information and nonexempt information were intertwined, was entitled to presumption of good
faith). It thus becomes ACLJ’s burden to cast doubt on DOJ’s compliance.
ACLJ’s challenge is an overarching legal one: it argues that any “factual” material in
talking points and similar documents is necessarily distinct from “opinions” that are the subject
of the privilege. See Pl.’s Br. at 8-9; Pl.’s Reply at 6-8. But as the D.C. Circuit has held, “[i]n
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some circumstances, even material that could be characterized as ‘factual’ would so expose the
deliberative process that it must be covered by the privilege.” Elec. Frontier Found., 739 F.3d at
13 (alteration in original) (quoting Wolfe v. Dep’t of Health & Human Servs., 839 F.2d 768, 774
(D.C. Cir. 1988) (en banc)). That is, “purely factual” material can be “so inextricably
intertwined with the deliberative sections of documents that its disclosure would inevitably
reveal the government’s deliberations.” Id. (quoting In re Sealed Case, 121 F.3d at 737). DOJ
has asserted that this is the case here. It explains that attempting to carve out the “factual”
material from the talking points and other documents at issue would disclose its internal
deliberations regarding how to respond to media inquiries. Brinkman Decl. ¶ 18; Second
Brinkman Decl. ¶ 32. The Court finds this at least plausible, and perhaps even compelling.
Communications with media often consist of nothing more than a judicious selection and
presentation of facts. Thus, releasing “factual” material from talking points would almost
inevitably reveal the agency’s deliberations on how to present those facts. Cf. Elec. Frontier
Found. v. DOJ, 890 F. Supp. 2d 35, 53 (D.D.C. 2012) (agreeing with government that
“employees’ deliberative process of selecting and presenting facts” fell within privilege). ACLJ
has provided no good reason to think otherwise in this case, and accordingly has not met its
burden to overcome the presumption in DOJ’s favor on this issue.
Therefore, the Court concludes that DOJ has satisfied FOIA’s segregability requirement.
Conclusion and Order
For all of the above reasons, the Court hereby GRANTS IN PART and DENIES IN
PART DOJ’s motion for summary judgment (ECF No. 21), and DENIES ACLJ’s cross-motion
for summary judgment (ECF No. 23). DOJ’s motion is denied insofar as it relates to documents
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bearing control numbers 0.7.9269.5105 and 0.7.9269.6094, and is granted in all other respects.
ACLJ’s cross-motion is denied in all respects.
DOJ shall, by October 9, 2018, file a supplemental declaration describing in greater
detail the basis for its assertion of the deliberative-process privilege over the documents bearing
control numbers 0.7.9269.5105 and 0.7.9269.6094. By that date, DOJ shall also file a renewed
motion for summary judgment and a supporting memorandum of no more than five double-
spaced pages. ACLJ shall file any response and cross-motion by October 23, 2018, and its
memorandum of law shall be no more than five double-spaced pages. No further briefing on the
renewed motions may be filed without leave of court.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: September 7, 2018
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