Brennan Center for Justice at New York University School of Law v. U.S. Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
BRENNAN CENTER FOR JUSTICE )
AT NEW YORK UNIVERSITY )
SCHOOL OF LAW, )
)
Plaintiff, )
)
v. ) Civil Action No. 18-1841 (ABJ)
)
U.S. DEPARTMENT OF JUSTICE, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Plaintiff, the Brennan Center for Justice at New York University School of Law, has sued
the Department of Justice (“DOJ” or “defendant”) under the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552 et seq. Compl. [Dkt. # 1]. Plaintiff requested documents from the DOJ
Civil Rights Division in connection with a letter that the Chief of the Voting Section sent to several
states seeking information relating to compliance with the National Voter Registration Act and the
Help America Vote Act. Id. ¶¶ 8–9. The agency conducted a search and released 407 pages of
documents, in full and in part, asserting that FOIA Exemptions 5 and 6 applied to the withheld
information. Pl.’s Statement of Undisputed Facts [Dkt. # 24-2] (“Pl.’s SUMF”) ¶¶ 8–10. It also
withheld over 20,200 pages under FOIA Exemptions 5, 6, 7(A), and 7(C). Id. ¶ 14.
Pending before the Court are the parties’ motions for summary judgment. Def.’s Mot. for
Summ. J. [Dkt. # 21] (“Def.’s Mot.”); Pl.’s Cross-Mot. for Summ. J. [Dkt. # 24] (“Pl.’s Cross-
Mot.”); Pl.’s Mem. in Supp. of Pl.’s Cross-Mot. [Dkt. # 24-1] (“Pl.’s Mem.”). Upon review of the
parties’ briefs and the full record in the case, the Court will grant in part and deny in part
defendant’s motion for summary judgment and grant in part and deny in part plaintiff’s cross-
motion for summary judgment.
BACKGROUND
I. The Request
On June 28, 2017, T. Christian Herren, Jr., the Chief of the DOJ Voting Section, sent a
letter to all states covered by the National Voter Registration Act (“NVRA”) (the “Letter”), 52
U.S.C. § 20501 et seq. Pl.’s FOIA Request, Ex. A to Compl. [Dkt. # 1-5] at 1 (“FOIA Request”).
The Letter requested information regarding the states’ procedures for compliance with the
statewide voter registration list maintenance provisions of the NVRA and the Help America Vote
Act (“HAVA”), 52 U.S.C. § 20901 et seq. Id. Specifically, it asked for each state’s statutes,
regulations, and policies relating to voter registration, as well as data regarding confirmation
notices, removals from the voter registration list, and active and inactive registered voters. Id. at
2. The Letter stated that the Department of Justice planned to review the states’ procedures in an
effort to assess compliance with the laws, and that it planned to analyze the voter registration data
reported by each state and provide it to the U.S. Election Assistance Commission as part of its
biennial Election Administration and Voting Survey. Id. It called for a response within thirty
days. Id. at 2.
In a FOIA request dated July 20, 2017, plaintiff sought the following documents from the
Civil Rights Division:
1. All documents the Department of Justice (“DOJ” or “Department”)
received or receives from state or local election officials in response to
the Letter.
2. All communications and documents, including but not limited to emails
and memoranda, between any DOJ officer, employee, or agent, or any
White House liaison to the Department, and any other person, including
but not limited to any officer, employee, or agent of the White House or
2
the Presidential Advisory Commission on Election Integrity concerning
the Letter.
Id. at 2. Plaintiff requested expedited processing of its FOIA Request. Id. at 3–4.
DOJ acknowledged receipt of the FOIA Request on July 24, 2017. Declaration of Tink
Cooper, Acting Chief of the Freedom of Information/Privacy Act Branch, Civil Rights Division,
DOJ [Dkt. # 21-1] (“Cooper Decl.”).
II. Procedural History
Prior to submitting the FOIA Request at issue in this case, plaintiff submitted a different
FOIA request in May of 2017, asking DOJ to produce documents related to the Presidential
3
Advisory Commission on Election Integrity (“PACEI”). Pl.’s SUMF ¶ 3. That request (the
“SDNY FOIA Request”) is the subject of separate litigation in New York. 1
In the fall of 2017, the parties had several discussions regarding the status of plaintiff’s
FOIA Request in this case. Pl.’s SUMF ¶ 5. In March of 2018, defendant stated that it needed to
coordinate with the U.S. Attorney’s Office for the Southern District of New York, because that
1 In that request, plaintiff sought the following records:
1. All communications, including but not limited to emails and memoranda,
between any Department of Justice (“DOJ” or “Department”) officer,
employee, or agent, or any White House liaison to the Department, and any
other person, including but not limited to any officer, employee, or agent of
the White House or DOJ, or any member of the presidential transition team
or the presidential campaign of Donald Trump, regarding the Presidential
Advisory Commission on Election Integrity or any other effort since
November 8, 2016 to establish a commission, task force, or committee to
study voter fraud or any aspect of the voting system.
2. All communications, including but not limited to emails and memoranda,
between any Department officer, employee, or agent, or any White House
liaison to the Department, and any member of the Presidential Advisory
Commission on Election Integrity, other than Vice President Michael
Pence, since November 8, 2016.
3. All documents relating to the Presidential Advisory Commission on
Election Integrity or any other effort since November 8, 2016 to establish a
commission, task force, or committee to study voter fraud or any aspect of
the voting system, including all documents discussing or making reference
to the following subjects:
a. The Executive Order creating the Presidential Advisory
Commission on Election Integrity;
b. The reasons for forming the Presidential Advisory Commission on
Election Integrity;
c. The goals and mission of the Presidential Advisory Commission on
Election Integrity; and
d. The membership of the Presidential Advisory Commission on
Election Integrity, including the criteria for selection of its members.
Id.4
office was handling the SDNY FOIA Request. Id. Defendant also inquired as to how the SDNY
FOIA Request differed from the FOIA Request at issue. Id. On March 19, 2018, plaintiff
explained that its May 2017 request is specific to records “concerning the Letter,” and that while
the request “bears some similarity” to the SDNY FOIA Request, “it does not overlap entirely.” Id.
¶ 6, citing Ex. A to Decl. of Maximillian Feldman [Dkt. # 24-3] at 1–2.
On March 20, 2018, defendant responded to plaintiff’s FOIA Request. Def.’s Resp. to Pl.’s
FOIA Request, Ex. B. to Cooper Decl. [Dkt. # 21-2]. With regard to the first category of
documents requested, defendant denied the request entirely pursuant to FOIA Exemptions 5, 6,
and 7(A). Id. at 1. With regard to the second category of documents, defendant stated that it found
407 pages that could be released with redactions pursuant to Exemptions 5 and 6. Four pages were
withheld completely under Exemptions 5 and 7(A). Id. at 2.
Plaintiff filed an appeal with DOJ on May 15, 2018. Ex. C to Compl. [Dkt. # 1-7]. The
appeal was still pending in August, and so plaintiff filed the complaint in this case. Defendant
answered on September 18, 2018, see Def.’s Answer [Dkt. # 10], and the Court ordered defendant
to file a dispositive motion or a report setting forth the schedule for the completion of its production
of documents. Order [Dkt. # 11]. On November 5, 2018, defendant filed a status report indicating
that it would release additional information by November 14 and provide a Vaughn index to
plaintiff by November 30. Def.’s Status Report [Dkt. # 16].
On November 14, 2018, DOJ informed plaintiff that it found approximately 100 pages of
records responsive to the first document request that could be released without interfering with
law enforcement proceedings. Def.’s Suppl. Resp. to Pl.’s FOIA Request, Ex. C to Cooper Decl.
[Dkt. # 21-2]. Other responsive documents were withheld under Exemptions 5 and 7(A). Id.5
On March 7, 2019, defendant filed a motion for summary judgment arguing that it had met
all of its obligations under FOIA. Def.’s Mot. With its motion, defendant attached a Vaughn
Index, which set forth four categories of documents, a description of the content of those
documents, what exemptions applied to them, and how many pages the documents comprised.
Summary Categorical Index (“Vaughn Index”) [Dkt. # 21-3]. Those categories are:
• Category 1 (5 pages): A July 13, 2017 email and attachment with
portions withheld pursuant to Exemption 5.
• Category 2 (4 pages): Emails sent between March and July 2017
between attorneys in the Civil Rights Division at DOJ which were
completely withheld pursuant to Exemptions 7(A) and 5.
• Category 3 (1 page): Emails sent between February 13 and 14, 2017
between the Civil Rights Division and the U.S. Election Assistance
Commission with portions withheld pursuant to Exemption 5.
• Category 4 (20,217 pages): Information collected from various states
regarding compliance with federal voting laws, withheld pursuant to
Exemptions 7(A) and 5.
Id. Plaintiff opposed the motion and filed its own cross-motion for summary judgment on April
11, 2019. Pl.’s Cross-Mot.; Pl.’s Mem.
On March 5, 2020, the Court determined that in-camera review of the withheld information
in first three categories of documents would assist the Court in making a responsible, de novo
ruling on defendant’s claims of exemptions. It ordered defendant to produce the unredacted
versions of the documents for inspection. Min. Order (Mar. 5, 2020).
6
STANDARD OF REVIEW
Summary judgment is appropriate “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). The party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary
judgment, the non-moving party must “designate specific facts showing that there is a genuine
issue for trial.” Id. at 324 (internal quotation marks omitted). When the court is presented with
cross-motions for summary judgment, it analyzes the underlying facts and inferences in each
party’s motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986).
The mere existence of a factual dispute is insufficient to preclude summary judgment. Id.at 247–48. A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving
party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248;
Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
In a FOIA action, the Court may award summary judgment solely on the information
provided in affidavits or declarations that 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). Such affidavits or
declarations are accorded “a presumption of good faith, which cannot be rebutted by ‘purely
7
speculative claims about the existence and discoverability of other documents.’” SafeCard Servs.,
Inc. v. Sec. & Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991), quoting Ground Saucer
Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981).
ANALYSIS
FOIA requires the release of government records upon request. It was enacted to “ensure
an informed citizenry, vital to the functioning of a democratic society, needed to check against
corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). But Congress also recognized “that legitimate
governmental and private interests could be harmed by [the] release of certain types of information
and provided nine specific exemptions under which disclosure could be refused.” FBI v.
Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice,
331 F.3d 918, 925 (D.C. Cir. 2003) (“FOIA represents a balance struck by Congress between the
public’s right to know and the government’s legitimate interest in keeping certain information
confidential.”). The Supreme Court has instructed that FOIA exemptions are to be “narrowly
construed.” Abramson, 456 U.S. at 630.
To prevail in a FOIA action, an agency must satisfy two elements. First, the agency must
demonstrate that it has 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.” Oglesby
v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Second, an agency must show that
“materials that are withheld . . . fall within a FOIA statutory exemption.” Leadership Conference
on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 252 (D.D.C. 2005). Any “reasonably
segregable” information in a responsive record must be released, 5 U.S.C. § 552(b), and “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.
8
1977). “The agency bears the burden to establish the applicability of a claimed exemption to any
records or portions of records it seeks to withhold.” Am. Immigration Lawyers Ass’n v. Executive
Office of Immigration Review, 830 F.3d 667, 673 (D.C. Cir. 2016).
In its motion for summary judgment, defendant argued that: (1) it conducted an adequate
search; (2) it properly withheld information pursuant to Exemptions 5, 6, 7(A), and 7(C); and (3)
it complied with FOIA’s segregability requirement. See Def.’s Mot. Plaintiff argues in its cross-
motion that: (1) defendant did not conduct an adequate search; (2) DOJ’s Vaughn Index is
inadequate to satisfy its evidentiary burden; (3) the information contained in the Vaughn Index is
insufficient to justify defendant’s withholdings under Exemption 7(A); (4) Exemption 5 does not
justify withholding the remaining records; and (5) DOJ has not shown that it released all segregable
material. See Pl.’s Cross-Mot. Plaintiff does not challenge the application of Exemptions 6 and
7(C), and thus, the Court will not address them. 2
The Court finds that DOJ did not conduct an adequate search, but its withholdings under
Exemption 5 for the first and third categories of documents were proper. The Court also finds that
the documents in the second category were properly withheld pursuant to Exemption 7(A).
Finally, the Court finds that the description of the fourth category of documents is insufficient to
properly evaluate whether the claimed exemptions apply. Thus, the Court will grant in part and
deny in part defendant’s motion for summary judgment, and it will grant in part and deny in part
plaintiff’s cross-motion for summary judgment.
2 Defendant’s Vaughn Index does not indicate which records were redacted pursuant to
Exemptions 6 and 7(C), but the declaration submitted by the agency describes the withholdings
under these exemptions generally.
9
I. DOJ did not conduct an adequate search.
An agency’s search for documents in response to a FOIA request is adequate if it is “beyond
material doubt that its search was ‘reasonably calculated to uncover all relevant documents.’”
Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 514 (D.C. Cir. 2011), quoting
Valencia–Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999); see also Weisberg v.
U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). To demonstrate that it has performed
an adequate search, an agency must submit a reasonably detailed affidavit describing the search.
Oglesby, 920 F.2d at 68. An affidavit is “reasonably detailed” if it “set[s] forth the search terms
and the type of search performed, and aver[s] that all files likely to contain responsive materials
(if such records exist) were searched.” Id.; see also Defs. Of Wildlife v. U.S. Border Patrol, 623
F. Supp. 2d 83, 91 (D.D.C. 2009). Although there “is no requirement that an agency search every
record system,” an agency “cannot limit its search to only one record system if there are others
that are likely to turn up the information requested.” Oglesby, 920 F.2d at 68.
Agency affidavits attesting to a reasonable search “are accorded a presumption of good
faith,” SafeCard Servs., 926 F.2d at 1200, that can be rebutted “with evidence that the agency’s
search was not made in good faith,” Trans Union LLC v. Fed. Trade Comm’n, 141 F. Supp. 2d 62,
69 (D.D.C. 2001), or when a review of the record raises substantial doubt about the adequacy of
the search effort. Valencia–Lucena, 180 F.3d at 326; see also Truitt v. U.S. Dep’t of State, 897
F.2d 540, 542 (D.C. Cir. 1990) (“If, however, the record leaves substantial doubt as to the
sufficiency of the search, summary judgment for the agency is not proper.”).
While an agency’s declarations “need not ‘set forth with meticulous documentation the
details of an epic search for the requested records,’” Defs. Of Wildlife, 623 F. Supp. 2d at 91,
quoting Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982), they should “describe what records
were searched, by whom, and through what processes.” Id., quoting Steinberg v. U.S. Dep’t of
10
Justice, 23 F.3d 548, 552 (D.C. Cir. 1994). Agency affidavits that “do not denote which files were
searched, or by whom, do not reflect any systematic approach to document location, and do not
provide information specific enough to enable [the requester] to challenge the procedures utilized”
are insufficient to support summary judgment. Weisberg v. U.S. Dep’t of Justice, 627 F.2d 365,
371 (D.C. Cir. 1980); see Steinberg, 23 F.3d at 551–52 (stating that an agency affidavit must
describe “what records were searched, by whom, and through what process”). Conclusory
assertions about the agency’s thoroughness are insufficient. Morley v. CIA, 508 F.3d 1108, 1121
(D.C. Cir. 2007).
DOJ’s declarant explained that when the Civil Rights Division receives a request seeking
specific documents, “the Division will contact the Section that specializes in the enforcement of
the particular Division statute or issues referenced in the request, or that otherwise is likely to have
information relevant to the subject matter of the request.” Cooper Decl. ¶ 5. The Division Deputy
Chief serves as the contact point regarding the search for and production of documents under
FOIA, and it is his job to “ascertain all individual attorneys or personnel that may have been
involved in developing the records related to a specific enforcement action.” Id. Then, that
section’s staff “searches both paper and electronic records,” including the email systems. Id.The Civil Rights Division will also contact the Office of Assistant Attorney General
(“OAAG”) because OAAG has senior management authority over the Division’s sections and is
therefore the best source to identify which sections would be likely to have responsive records.
Cooper Decl. ¶ 6. Kathleen Toomey, the Director of Operational Management at OAAG, serves
as its FOIA contact point, and she identifies the attorneys who may have responsive information.
Id. OAAG will search both paper and electronic records, including the email systems. Id.Defendant stated that this practice was followed in this case. Id. ¶ 5.
11
The Request was forwarded to OAAG in late July of 2017. Toomey consulted with the
Deputy Assistant Attorney Generals to determine which members of the OAAG staff had worked
on the issues identified in the Request. Cooper Decl. ¶ 8. Specifically, she identified John M.
Gore, who has served as a Deputy Assistant Attorney General (“AG”), Acting Assistant AG, and
Principal Deputy Assistant AG in the Division’s Voting Section, and Thomas Wheeler, who had
served as an Acting Assistant AG. Id. She determined that searching their emails was appropriate.
Id. The request was also sent to the Voting Section of DOJ on September 28, 2017, although the
section was advised of the request in July. Id. ¶ 9. Both the OAAG and Voting Section conducted
a search for electronic and paper records responsive to the request. Id. ¶ 10.
Defendant searched electronic communications in a Division-wide email system called
“0365.” Cooper Decl. ¶ 11. Its electronic search identified eighty custodians as potentially having
responsive information: Tom Wheeler, John Gore, Voting Section Chief Chris Herren, Voting
Section Deputies, and seventy-one employees of the Voting Section, including current and former
paralegals, attorneys, and clerical and administrative staff. Id. Defendant utilized the following
search terms to search emails: Presidential Advisory Commission; Presidential Advisory
Commission on Election Integrity; PACEI; “Election Integrity Commission” NEAR “voting
system”; “task force” NEAR vote NEAR fraud; Study NEAR “voting system”; Pence; Kobach;
Lawson; Gardner; Dunlap; Blackwell; McCormick; Dunn; Rhodes; von Spakovsky; Adams; King;
Borunda. 3 Id. The time period for the search was from November 8, 2016 through September 27,
2017. Id. The agency averred that “the June 28, 2017 letter was also used as [a] search term.”
Suppl. Cooper Decl. [Dkt. # 28-1] ¶ 6. Defendant has represented that it received several FOIA
3 “Near” searches mean that the two words were within eight words of each other. Cooper
Decl. ¶ 11.
12
requests regarding the Presidential Advisory Commission on Election Integrity (“PACEI”), and
the search conducted here repeated the broader search terms and parameters used in those other
requests. Id.
The senior management and leadership of the voting section, Chris Herren, Rebecca J.
Wertz, and Robert S. Berman also identified responsive records regarding the Letter by looking
through the “investigation” files related to each state. Suppl. Cooper Decl. ¶ 6. Those
“investigation” files are maintained by the Voting Section staff working on these matters, and they
are part of the Division’s case management system. Id.
Plaintiff contends that defendant’s search was inadequate for several reasons. First, it
argues that the search terms were not specific to the Letter, and they focused on the PACEI instead,
and thus they could not have uncovered all relevant documents. Pl.’s Mem. at 9. It also complains
that defendant did not identify the seventy-one custodians in the Voting Section whose files and
emails were searched or detail the methods used to search other electronic records. Id. at 9–10.
Finally, plaintiff argues that “the timing of DOJ’s response” to its FOIA Request “casts additional
doubt on the adequacy of its search.” Id. at 10. It points out that only one day elapsed between
DOJ’s inquiry regarding the difference between the FOIA Request and the SDNY FOIA Request
and DOJ’s response to the FOIA Request, and thus, defendant could not have meaningfully taken
the distinctions into account and performed a thorough search. 4 Id.
The Court finds first that DOJ’s search was inadequate because it did not tailor the search
terms to plaintiff’s specific request but simply piggy-backed on work that was already done in a
4 The Court is not concerned with the timing of the inquiry and the response. As the agency
averred through its declarant, the inquiry regarding the difference between the two requests was
sent because the two requests were quite similar and the agency wished to resolve any ambiguity.
Suppl. Cooper Decl. ¶ 4. That does not mean, as plaintiff suggests, that defendant only began its
search that day – DOJ states that its search began in July of 2017.
13
somewhat related area. The search terms are focused on the PACEI and its members; while the
second part of the FOIA Request asked for communications between DOJ and PACEI concerning
the letter, it also asked for communications “between any DOJ officer, employee, or agent, or any
White House liaison to the Department, and any other person . . . concerning the Letter.” FOIA
Request. Indeed, it is unclear why the names of those on the PACEI were used as search terms,
since defendant has not stated what their connection to the Letter might be. For those reasons,
defendant has not met its burden to demonstrate that the search was reasonably calculated to
uncover all relevant documents.
Defendant submitted a supplemental declaration which averred that “the June 28, 2017
letter was also used as [a] search term.” Suppl. Cooper Decl. ¶ 6. But that vague statement did
not identify the search term that was actually used, so it is not specific enough to enable plaintiff
to challenge the search or the Court to evaluate it.
Second, the Court finds that defendant’s showing was deficient because it did not provide
any details as to how the search for electronic files, as opposed to emails, was conducted, and it
has not provided any details as to how the search for hard copy files was conducted or how the
files are maintained. While defendant averred that “all locations likely to contain relevant
documents were searched,” Cooper Decl. ¶ 15, it does not explain how electronic files are
organized, if there is shared drive that contains all electronic files or if separate drives were
searched, or what search terms were used.
Thus, defendant has not carried its burden to establish “beyond material doubt [ ] that it
has conducted a search reasonably calculated to uncover all relevant documents” responsive to the
FOIA Request. Nation Magazine Washington Bureau v. Customs Serv., 71 F.3d 885, 890 (D.C.
Cir. 1995) (internal citations and quotation marks omitted). The Court will therefore deny
14
defendant’s motion for summary judgment on this issue and grant plaintiff’s cross-motion for
summary judgment. The Court will remand the case to the agency to conduct an adequate search
responsive to plaintiff’s FOIA Request.
II. Exemption 5 justifies defendant’s withholdings in categories 1 and 3.
Exemption 5 permits agencies to withhold “inter-agency or intra-agency memorandums or
letters which would not be available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. § 552(b)(5); U.S. Dep’t of Interior & Bureau of Indian Affairs v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8 (2001). A document may be properly withheld under
Exemption 5 only if (1) its source is a government agency, and (2) it falls “within the ambit of a
privilege against discovery under judicial standards that would govern litigation against the agency
that holds it.” Klamath, 532 U.S. at 8. The exemption encompasses “protections traditionally
afforded [to] certain documents pursuant to evidentiary privileges in the civil discovery context,”
including the executive “deliberative process” privilege. Taxation with Representation Fund v.
IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). FOIA “places the burden on the agency to sustain the
lawfulness of specific withholdings in litigation.” Nat. Res. Def. Council, Inc. v. Nuclear
Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C. Cir. 2000).
Defendant has asserted that the deliberative process privilege and the attorney work
product privilege applies to the withheld information in categories 1, 2, and 3. The Court finds
that the deliberative process privilege applies to the redactions in categories 1 and 3, and thus it
will not evaluate the application of the work product privilege to these documents. As for category
2, the Court finds that Exemption 7(A) applies to these pages, and thus it will not evaluate whether
they fall under Exemption 5.
“The deliberative process privilege rests on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery,” and its
15
purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion
among those who make them within the Government.” Klamath, 532 U.S. at 8–9 (citations
omitted), quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). The privilege
“‘ensur[es] that persons in an advisory role would be able to express their opinions freely to agency
decision-makers without fear of publicity. . . . Such consultations are an integral part of its
deliberative process; to conduct this process in public view would inhibit frank discussion of policy
matters and likely impair the quality of decisions.’” McKinley v. Bd. Of Gov. of the Fed. Reserve
Sys., 647 F.3d 331, 339–40 (D.C. Cir. 2011), quoting Ryan v. U.S. Dep’t of Justice, 617 F.2d 781,
789–90 (D.C. Cir. 1980). To accomplish that goal, “[t]he deliberative process privilege protects
agency documents that are both predecisional and deliberative.” Judicial Watch, Inc. v. Food &
Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006), citing Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). 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.” Coastal, 617 F.2d at 866; see also Abtew, 808 F.3d at 899.
The first category of documents is a July 13, 2017 email and attachment comprising five
pages from the “Civil Rights Division’s Front Office to the Voting Section Chief regarding the
development of responses to Congressional inquiries for committee hearings on voting issues.”
Vaughn Index at 1. DOJ released the pages in part and explained that the withheld portions fell
within the deliberative process privilege because they contain “pre-decisional comments and
discussions regarding who should respond to the inquiries,” Vaughn Index at 1, and “opinions and
recommendations as to the appropriate response to convey.” Suppl. Cooper Decl. ¶ 43.
Based on the Court’s in-camera review, as well as the description in defendant’s Vaughn
Index and declaration, the Court is satisfied that the very limited and non-substantive redactions,
16
which appear to reflect internal attorney communications and decision-making about which
individuals or organizations within DOJ will be responsible for responding to questions from
Congress, were appropriately redacted under the deliberative process privilege.
The third group of documents, which comprises one page, contains Civil Rights Division
emails sent between February 13 to February 14, 2017, “discussing potential areas/imperatives
where two agencies could cooperate, to be addressed at an intra-agency meeting between [the
Division’s] Special Counsel to the Acting Assistant Attorney General and the U.S. Election
Assistance Commission.” Vaughn Index at 2. Defendant contends that these emails encompassed
“pre-decisional and deliberative communications . . . in contemplation of pending litigation and
foreseeable litigation regarding voting compliance issues,” and that it contained “candid, frank,
pre-decisional identification of proposed subject matters and issues of vital enforcement issues.”
Suppl. Cooper Decl. ¶ 43.
Based on the Court’s in-camera review, as well as the Vaughn Index and the agency’s
declaration, the Court finds the redactions to be predecisional because the information discusses
whether and how the agencies can decide to work together, and it specifies subject areas of
proposed cooperation. The redacted information reflects an early step in the give-and-take of the
consultative process. Thus, the Court is satisfied that the information redacted in the records found
in category 3 was withheld properly under Exemption 5.
Furthermore, DOJ’s declarant averred that it conducted a detailed review of the documents
and it “released the reasonably segregable nonexempt information.” Cooper Decl. ¶ 26. Based on
its in-camera review of the documents in categories 1 and 3, the Court finds that all reasonably
segregable, non-exempt information has been released. 5 U.S.C. § 552(b)(9); see Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (“Before approving the application of a
17
FOIA exemption, the district court must make specific findings of segregability regarding the
documents to be withheld.”).
III. Exemption 7(A) justifies withholding the records in category 2.
DOJ also claims that Exemption 7(A) applies to the second category of records. FOIA
Exemption 7(A) permits agencies to withhold “records or information compiled for law
enforcement purposes, but only to the extent that the production of such law enforcement records
or information . . . could reasonably be expected to interfere with enforcement proceedings.”
5 U.S.C. § 552(b)(7)(A). To justify the withholding of records under Exemption 7(A), DOJ must
“demonstrate that ‘disclosure (1) could reasonably be expected to interfere with (2) enforcement
proceedings that are (3) pending or reasonably anticipated.’” Citizens for Responsibility & Ethics
in Wash. v. U.S. Dep’t of Justice, 746 F.3d 1082, 1096 (D.C. Cir. 2014) (“CREW”), quoting
Mapother v. U.S. Dep’t of Justice, 3 F.3d 1533, 1540 (D.C. Cir. 1993).
Agency “records are considered ‘compiled for law enforcement purposes’ if ‘the
investigatory activity that gave rise to the documents is related to the enforcement of federal laws,
and there is a rational nexus between the investigation at issue and the agency’s law enforcement
duties.’” Judicial Watch v. Rossotti, 285 F. Supp. 2d 17, 24 (D.D.C. 2003), quoting Jefferson v.
U.S. Dep’t of Justice, 284 F.3d 172, 177 (D.C. Cir. 2002). “[A]lthough [courts] give deference to
an agency’s predictive judgment of the harm that will result from disclosure of information, it is
not sufficient for the agency to simply assert that disclosure will interfere with enforcement
proceedings; it must rather demonstrate how disclosure will do so.” CREW, 746 F.3d at 1098
(internal quotation marks omitted) (emphasis in original), quoting Mapother, 3 F.3d at 1540(internal quotation marks and citation omitted).
The Court finds that defendant has sufficiently alleged that there are pending or prospective
investigations. DOJ explained that it “has active, ongoing enforcement proceedings regarding 44
18
states and the District of Columbia under the National Voter Registration Act . . . and the Help
America Vote Act.” 5 Vaughn Index at 2. DOJ’s declarant stated that the June 28, 2017 Letter
was sent to each state to gather information relating to the Voting Section’s investigation into
compliance with federal law. Suppl. Cooper Decl. ¶¶ 15–16; see Vaughn Index at 2 (“As part of
the Voting Section’s nationwide enforcement efforts, it is reviewing the voter registration list
maintenance procedures in each state and D.C. covered by the NVRA. . . . These actions are part
of CRT’s normal enforcement duties and within its statutory jurisdiction.”). Thus, the Vaughn
Index and declaration are sufficient to conclude that enforcement proceedings are pending or
reasonable anticipated. See Pub. Employees for Envtl. Responsibility v. U.S. Section, Int'l
Boundary & Water Comm’n, U.S.-Mexico, 740 F.3d 195, 203 (D.C. Cir. 2014) (“If the agency’s
principal function is law enforcement, we are ‘more deferential’ to the agency’s claimed purpose
for the particular records.”).
The declarant also stated that releasing the material would be harmful:
Disclosure would reveal the Division’s strategy and evaluation of evidence
pertaining to the pending enforcement proceeding against the states and the
District of Columbia. Harm would result from prematurely releasing
information that would reveal investigative strategies regarding the type of
information sought from the states, and what data is found to be particularly
probative of a state’s compliance with federal voting rights statutes and the
voter registration list maintenance list requirements. . . . Release at this time
of the investigative materials could reveal the scope and focus of the
investigations; tip off individuals or states to information of interest to law
enforcement; provide subjects the opportunity to alter evidence to avoid
detection; and reveal the core of the Department’s review of compliance
with these statutes. For example, a state made aware of data and
information pertaining to another state could seek to manipulate its own
data in order to present a more favorable picture of compliance with NVRA
and HAVA.
5 On November 14, 2018, the Civil Rights Division was able to release 100 pages of
documents pertaining to the investigation into the Commonwealth of Kentucky because “their
release would not interfere with the law enforcement proceedings.” Vaughn Index at 3.
19
Cooper Decl. ¶ 19. 6
The first three pages of the second category of documents contain emails sent between
March and July 2017, between an attorney at the Civil Rights Division of DOJ and an official of
the government of Montana with regards to a request for information regarding voter information.
The last page is an email between two attorneys in the Civil Rights Division regarding a state’s
response to the commission.
The Court finds that these pages were properly withheld under Exemption 7(A), because
the state’s response to the request for information was compiled for law enforcement purposes in
an investigation that is currently ongoing. If disclosed, it would interfere with a law enforcement
proceeding, because it would disclose the agency’s priorities in the investigation and certain
strategies the agency may employ in collecting evidence. Furthermore, it would reveal how the
agency evaluates that evidence. Thus, the Court finds that the records in category 3 were properly
withheld under Exemption 7(A), and that no material can be released without jeopardizing current
or prospective litigation efforts.
IV. Defendant’s description of category 4 was insufficient.
The fourth category encompasses 20,217 pages of documents from June 2017 to the date
of DOJ’s response. Vaughn Index at 2. The Vaughn Index states that “Exemption 7(A) [applies
to] entire email chains and documents concerning ongoing law enforcement actions, which
includes documents exemption under [Exemption 5.]” Id.The Vaughn Index is designed to serve three important functions: “[I]t forces the
government to analyze carefully any material withheld, it enables the trial court to fulfill its duty
6 The declaration went on to state that “a review of the responsive records determined that
there is no public source material available for release that would not adversely affect pending or
prospective enforcement proceedings.” Id.20
of ruling on the applicability of the exemption, and it enables the adversary system to operate by
giving the requester as much information as possible, on the basis of which he can present his case
to the trial court.” Judicial Watch, 449 F.3d at 146, quoting Keys v. U.S. Dep’t of Justice, 830
F.2d 337, 349 (D.C. Cir. 1987).
In reviewing the Vaughn Index and accompanying declaration, the court must “ascertain
whether the agency has sustained its burden of demonstrating that the documents requested
are . . . exempt from disclosure.” Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55,
57 (D.C. Cir. 2003) (citations omitted). If the index and declarations “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,” CREW, 746 F.3d at 1088, quoting Larson v.
U.S. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009), then the agency has carried its burden.
Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667, 673 (D.C.
Cir. 2016); Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 30 (D.C. Cir. 1998) (the government
must furnish “detailed and specific information demonstrating that material withheld is logically
within the domain of the exemption claimed”) (internal quotation marks omitted).
The Vaughn Index sets forth that the records in category 4 are comprised of “multiple
emails, letters, and other types of documents provided by the 45 chief election officials of the states
and D.C. in response to [the Division’s] June 28, 2017 letter.” Vaughn Index at 3. The pages
include the states’ responses in “narrative as well as various additional items such as legislation,
draft versions of proposed bills, bills regulations, codes, policies, guidance, brochures, and election
manuals or descriptions regarding voter registration procedures, election processes, convicted
felons, and death notices . . ., discussion of case law on particular issues such as the NVRA and
21
HAVA . . . [and] supplemental responses in response to [the Division’s] requests for clarification
and additional information.” Id.; Cooper Decl. ¶ 18 (providing that the states also provided “drafts
and negotiation documents concerning their compliance with these statutes”). The pages also
contain “supplemental document requests and the states’ responses . . . related to the compliance
and non-compliance of the 45 states and D.C. with the NVRA and HAVA.” Cooper Decl. ¶ 18.
In other words, the agency has simply lumped together thousands of pages of records –
emails, memoranda, letters, draft legislation, legislation, published regulations and manuals – and
asserts the pages “include [] documents” exempted under Exemptions 5 and 7(A). Vaughn Index
at 2. It can be appropriate for an agency to group common documents together, but the index and
the supporting affidavit must be “sufficiently detailed to allow the district court fairly to evaluate”
the application of a claimed exemption to distinct categories of documents. Gallant v. NLRB, 26
F.3d 168, 173 (D.C. Cir. 1994); see Bevis v. U.S. Dep’t of State, 801 F.2d 1386, 1389–90 (D.C.
Cir. 1986) (in evaluating FOIA Exemption 7(A), the court found that the agency can take a
categorical approach to justify its withholdings but it must define functional categories, review the
requested documents one by one and assign each to a category, and “trace a rational link between
the nature of the document and the alleged likely interference”); see also Judicial Watch, 449 F.3d
at 147 (emphasizing the difference between a Vaughn Index based on commonalities versus a
Vaughn Index based on generalities).
DOJ’s description of the fourth category in its Vaughn Index is far too general to provide
the Court or the requester with enough information to determine whether Exemptions 5 or 7(A)
are applicable. The agency does not explain with sufficient detail which of those thousands of
pages of documents were withheld under the exemptions, and thus, the Court cannot determine
22
from the Vaughn Index, whether either of the exemptions apply. DOJ’s declaration is similarly
unhelpful. It states that the documents consist of:
internal emails and memoranda, draft responses, internal analysis and
discussions, strategies, and recommendations regarding possible litigation
against a state for violations of the NVRA and HAVA. This analysis and
advice concerns [sic] the legal sufficiency of a state’s response, and whether
any possible violation of the NVRA or HAVA had occurred, with the
recommendation from the line attorney to the supervisor to close a matter,
pursue the matter further, or authorize a lawsuit.
Cooper Decl. ¶ 22. It then generally states that the deliberative process privilege applies because
the documents encompass “analysis and strategy” and “recommendation[s] from the line attorney
to the supervisor to close a matter, pursue the matter further, or authorize a lawsuit.” Id. It does
not specify which of the 20,217 pages contain recommendations or deliberative material or why
the factual documents and copies of state policies and regulations are “inextricably intertwined
with the deliberative material.” Suppl. Cooper Decl. ¶ 43. The declaration also states that the
pages encompass attorney work product:
The information withheld reflects attorneys’ legal work-product . . . . The
information protected pursuant to the attorney work-product privilege was
created by Department attorneys concerning the conduct and strategies of
enforcement actions pursuant to the NVRA and the HAVA. These
evaluations, analysis, recommendations, and discussions in contemplation
of possible litigation against a state for violations of the NVRA or the
HAVA reveal the very core of the Department’s review of compliance with
these statutes, and release of this information would undermine the
Department’s litigation position should the underlying enforcement actions
become the subject of litigation.
Cooper Decl. ¶¶ 22, 24. While this may be true with respect to some of the over 20,000 pages, the
declaration does not tie this description to any specific documents or categories of documents – it
just states that it applies to the “information withheld.”
Furthermore, with respect to Exemption 7(A), because defendant groups together so many
different types of documents, the Court cannot properly assess whether disclosure of the broad
23
swath of documents covered by blanket assertions of an exemption could reasonably be expected
to result in harm to the enforcement proceeding. For example, DOJ asserts that some of the
withheld materials include state legislation, codes, policies, brochures, and election manuals. It is
not clear how disclosing state legislation or codes would reveal agency strategy, tip off other states
to information of interest, 7 or provide other states an opportunity to alter evidence. Other
documents in category 4 include the states’ responses to the Letter, emails, discussion of case law,
and “other types of documents.” In asserting that all of these documents fall within Exemption
7(A), defendant fails to link the nature of the document and the anticipated interference.
Here, it is evident that the government is claiming Exemption 7(A) because the documents
fall within the states’ investigative files, but the D.C. Circuit has recognized that, in the context of
Exemption 7, “[i]f an agency may withhold any document merely because it relates to a pending
investigation, . . . Exemption 7(A) would apply to everything properly placed in investigatory files,
yet Congress plainly mandated a focus upon records, not files.” Campbell, 682 F.2d at 262.
Without an understanding of the content of these pages and which documents were
withheld pursuant to Exemptions 5 and 7(A), the Court cannot assess whether the exemptions
properly apply to them. Thus, the Court does not have sufficient information to grant summary
judgment in favor of either part at this time.
Because the Court has found DOJ’s Vaughn Index legally insufficient with respect to
Category 4, the Court cannot determine, at this time, whether defendant also failed to segregate
non-exempt material from exempt material in its withholdings. Therefore, the Court reserves
judgment on the issue of segregability until DOJ provides the Court with the needed information.
7 This is a particularly speculative and vague future harm since the Letter was sent to forty-
four states and the District of Columbia. Vaughn Index at 2.
24
CONCLUSION
For the forgoing reasons, defendant’s motion for summary judgment is granted in part and
denied in part, and plaintiff’s cross-motion for summary judgment is granted in part and denied in
part. The matter is remanded to the agency to conduct an adequate search in response to plaintiff’s
FOIA Request and to release any responsive material to plaintiff consistent with FOIA. The Court
finds that the redactions in the documents in categories 1 and 3 were appropriate under Exemption
5, and the documents in category 2 were appropriately withheld under Exemption 7(A). Finally,
defendant is ordered to amend or supplement its Vaughn Index and/or declaration to provide more
detail with respect to category 4 as to what kinds of documents the category encompasses, which
documents were withheld partly or fully, and under what exemptions the information was withheld
and why.
A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: March 25, 2020
25