Judicial Watch, Inc. v. U.S. Department of Justice ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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JUDICIAL WATCH, INC., )
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Plaintiff, )
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v. ) Civil No. 19-cv-800 (TSC)
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UNITED STATES DEPARTMENT OF )
JUSTICE, )
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Defendant. )
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MEMORANDUM OPINION
Plaintiff Judicial Watch, Inc. sued Defendant U.S. Department of Justice (DOJ) seeking
to compel disclosure of records responsive to its Freedom of Information Act (FOIA) request.
Both parties have filed motions for summary judgment. (ECF Nos. 27 & 29.) Judicial Watch
challenges only DOJ’s invocation of Exemption 5, arguing that it has not met its burden under
the FOIA Improvement Act of 2016. (ECF No. 29-1, Pl. Br.) For the reasons set forth below,
the court will DENY both motions.
I. BACKGROUND
In July 2015, the FBI began investigating former Secretary of State Hillary Clinton’s
alleged use of unclassified private email servers. (ECF No. 27-2, Hardy Decl. ¶ 5.) A year later,
then FBI Director James Comey publicly announced that the FBI would close the investigation,
which it did the next day. (Id.) Following this announcement, attorneys in the FBI’s Office of
General Counsel prepared two sets of talking points for FBI managers to use in intra-agency
briefings on the investigation: one for the Executive Assistant Directors (EADs), and one for the
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Supervisory Agents in Charge (SACs). (Id. ¶ 6.) FBI officials also drafted FAQs and proposed
answers. (Id.)
In 2018, Plaintiff submitted a three-part FOIA request to the FBI, seeking:
• All final and draft copies of talking points prepared by the FBI for its EADs relating
to the “Mid-Year Exam” investigation (MYE Talking Points) following the July 5,
2016 James Comey press conference in which he indicated that he would not
recommend prosecuting Hillary Clinton;
• All final and draft copies of a one-page version of the aforementioned MYE Talking
Points created for FBI SACs;
• All final and draft copies of charts of “statutory violations considered during the
investigation [of Hillary Clinton’s server], and the reasons for the recommendation
not to prosecute . . .”
(Id. ¶ 7.) Having received no documents in response to these requests, Plaintiff filed this lawsuit
to compel disclosure of responsive records.
In September 2019, the FBI produced final copies of the SACs’ talking points and
notified Judicial Watch that final copies of the EADs’ talking points had already been released in
separate litigation by Judicial Watch. (Id. ¶ 9.) The FBI also withheld in full 70 pages of draft
EADs and SACs talking points pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). (Id. ¶ 10.) It
withheld 47 pages of those drafts exclusively under Exemption 5, which Plaintiff challenges on
the grounds that DOJ has failed to meet its burden under the FOIA Improvement Act of 2016.
(Id. ¶¶ 6, 10.)
II. LEGAL STANDARD
“FOIA provides a ‘statutory right of public access to documents and records’ held by
federal government agencies.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Justice, 602
F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir.
1982)). The Act requires federal agencies to comply with requests to make their records
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available to the public, unless such “information is exempted under [one of nine] clearly
delineated statutory [exemptions].” Id. (internal quotation marks omitted). See also 5 U.S.C.
§§ 552(a)–(b). “The agency bears the burden of justifying the application of any exemptions,
‘which are exclusive and must be narrowly construed.’” Ctr. for Investigative Reporting v. U.S
Dep’t of the Interior, No. 18-cv-1599, 2020 WL 1695175, at * 3 (Apr. 7, 2020) (quoting Mobley
v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015)). “FOIA cases typically and appropriately are
decided on motions for summary judgment.” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180
(D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87
(D.D.C. 2009)).
Summary judgment in FOIA cases may be based solely on information provided in an
agency’s supporting affidavits or declarations if they are “relatively detailed and non-
conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal
quotation and citation omitted). These declarations are “accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” Id. (internal quotation and citation omitted).
“To successfully challenge an agency’s showing that it complied with the FOIA, the
plaintiff must come forward with specific facts demonstrating that there is a genuine issue with
respect to whether the agency has improperly withheld . . . records.” Span v. U.S. Dep’t of
Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (citing U.S. Dep’t of Justice v. Tax Analysts,
492 U.S. 136, 142 (1989)) (quotation marks omitted). By corollary, “[a] non-moving party’s
complete failure to come forward with evidence to demonstrate the existence of a genuine issue
of material fact constitutes a ‘reason’ for the grant of summary judgment under [Rule 56(e)].”
Smith v. U.S. Dep’t of Justice, 987 F. Supp. 2d 43, 47 (D.D.C. 2013). Summary judgment is
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proper where the record shows there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002).
Courts must view “the evidence in the light most favorable to the non-movant,” “draw[] all
reasonable inferences accordingly,” and determine whether a “reasonable jury could reach a
verdict” in the non-movant’s favor. Lopez v. Council on Am.–Islamic Relations Action Network,
Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).
III. ANALYSIS
A. Exemption 5
DOJ withheld documents under Exemption 5, claiming protection under the deliberative
process privilege. 1 Exemption 5 shields documents that would “normally [be] privileged from
discovery in civil litigation against the agency,” such as documents protected by the attorney-
client, work-product, and deliberative process privileges. Tax Analysts v. IRS, 117 F.3d 607, 616
(D.C. Cir. 1997). To withhold a document under Exemption 5, an agency must show that “the
disclosures of information withheld . . . would harm the agency’s deliberative process.” Judicial
Watch v. U.S. Dep’t of Commerce, 375 F. Supp. 3d 93, 97 (D.D.C. 2019) (Judicial Watch I)
(citing 5 U.S.C. § 552(a)(8)(A)); see also Ctr. for Investigative Reporting v. U.S. Customs &
Border Prot., 436 F. Supp. 3d 90, 100 (D.D.C. 2019). Judicial Watch does not contest that the
deliberative process privilege protects the documents; instead, it argues that DOJ has not shown
that releasing the documents would harm the agency’s deliberative process. (Pl. Br. at 3–8.)
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Initially, DOJ also claimed some of the documents could be withheld under Exemption 5 as
attorney-work product. (ECF No. 27, Def. Br. at 8–9.) It later withdrew this claim. (ECF No.
31, Def. Reply at 3.)
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1. Burden to Establish Harm
The FOIA Improvement Act of 2016 (the Act), enacted in response to concerns about
FOIA’s efficacy, defines agencies’ burden to establish harms flowing from disclosure. Pub. L.
No. 114-185 (2016). The Act codified an existing DOJ policy, see Judicial Watch I, 375 F.
Supp. 3d at 97, permitting federal agencies to withhold information under a FOIA exemption
only if (1) they could “reasonably foresee[] that disclosure would harm an interest protected by
an exemption,” or (2) “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i)(I)–(II). DOJ
contends that because the Act codified existing agency policy, its burden under the Act has not
changed. (Def. Reply at 6–8.) The court agrees with Judicial Watch that the Act “provides a
meaningful and heightened standard.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, No. 17-cv-
0832, 2019 WL 4644029, at *5 (D.D.C. Sept. 24, 2019) (Judicial Watch II).
To meet its burden under the Act, an agency must “identify specific harms to the relevant
protected interests that it can reasonably foresee would actually ensue from disclosure of the
withheld materials.” Id.; see also Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 371
(D.C. Cir. 2020) (noting government showed that it “reasonably foresaw that disclosure would
harm an interest protected by the deliberative-process privilege.”) “The question is not whether
disclosure could chill speech, but rather if it is reasonably foreseeable that it will chill speech
and, if so, what is the link between this harm and the specific information contained in the
material withheld.” Judicial Watch I, 375 F. Supp. 3d at 101. It is not enough for an agency to
speculate that harm could result from disclosure. Id. It must “connect[] the harms” in a
“meaningful way to the information withheld, such as by providing context or insight into the
specific decision-making processes or deliberations at issue, and how they in particular would be
harmed by disclosure.” Judicial Watch II, 2019 WL 4644029, at *5; see also Rosenberg v. U.S.
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Dep’t of Def., 442 F. Supp. 3d 250, 259 (D.D.C. 2020). In doing so, an agency must avoid the
use of “nearly identical boilerplate statements” and “generic and nebulous articulations of harm.”
Ctr. for Investigative Reporting, 436 F. Supp. 3d at 106 (quoting Judicial Watch II, 2019 WL
4644029, at *4–5).
2. DOJ’s Claimed Harms
DOJ argues that disclosure of the drafts would harm two interests protected by the
deliberative process privilege: (1) avoiding public confusion, and (2) ensuring that agency
employees are able to engage in full and frank discussion. 2 (Hardy Decl. ¶¶ 9–10, 20.)
a. Public Confusion
DOJ has failed to provide more than speculation that disclosure of the drafts would cause
public confusion. See Judicial Watch I, 375 F. Supp. 3d at 101. It contends that because the
drafts differ substantively from their final versions, they might be mistaken for final agency
policy if released. (Hardy Decl. ¶¶ 18, 20.) DOJ admits that many of the drafts contain edits,
comments, and recommendations that track these changes (e.g., Bates Nos. 27–31). (ECF No.
27-2 at Ex. G, Revised Vaughn Index.) Indeed, as the revised Vaughn index descriptions
indicate, all but five of the withheld pages at issue contain comments, edits, recommendations, or
some combination of the three. (See id.) Because these documents have at least some markings
that indicate they are drafts, it is unlikely that they would be mistaken for final agency policy.
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While the parties appear to disagree on the scope of the harms protected by the deliberative
process privilege, they agree that it includes those currently invoked by DOJ and articulated in
Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980): 1)
preserving frank discussions between government officials, 2) preventing premature disclosure
of proposed policies, and 3) avoiding public confusion from releasing inaccurate information.
(Def. Reply at 9; ECF No. 33, Pl. Reply at 6.) See also Machado Amadis, 971 F.3d at 371
(noting the deliberative process privilege “protects ‘debate and candid consideration of
alternatives within an agency,’ thus improving agency decisionmaking.” (quoting Jordan v. U.S.
Dep’t of Justice, 591 F.2d 753, 772 (D.C. Cir. 1978))).
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DOJ further contends that disclosing drafts that may contain factually inaccurate
information would cause public confusion. (ECF No. 31-1, Seidel Decl. ¶ 8.) However, DOJ
admits that it has not fully vetted these drafts for factual accuracy. (Id.) Until it has done so, and
can assert to this court that the documents do, in fact, contain inaccurate information, DOJ’s
assertions are merely speculative.
Moreover, the boilerplate statements in DOJ’s affidavits and revised Vaughn index do not
support DOJ’s argument that public confusion is indeed “reasonably foreseeable,” and not
merely speculative. See, e.g., Rosenberg, 442 F. Supp. 3d at 259 (finding greater specificity
needed to meet heightened burden).
b. Discouraging Frank Dialogue
DOJ likewise fails to meaningfully connect the harm of discouraging frank dialogue to
the information withheld, relying on boilerplate statements to justify its withholdings. See Ctr.
for Investigative Reporting, 436 F. Supp. 3d at 106. For example, DOJ declares that “[t]he harm
here would be a chilling effect on agency employees’ willingness to share such drafts if they
knew their unrefined ideas would be subject to public disclosure,” (Hardy Decl. ¶ 20), but fails to
draw a link between the stated harm and the specific drafts withheld. It does not “provid[e]
context or insight into the specific decision-making processes or deliberations at issue, and how
they in particular would be harmed by disclosure.” Judicial Watch II, 2019 WL 4644029, at *5.
And while DOJ’s second declaration provides a more detailed account, its assertion that
releasing the drafts “would harm the ability of attorneys and additional staff members within the
FBI to be completely candid with FBI senior executives in expressing their views with which the
executives may subsequently disagree,” (Seidel Decl. ¶ 9), falls short of meaningfully connecting
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the harm to the specific information withheld. DOJ’s revised Vaughn index descriptions are
equally nebulous:
The release of the material would have the foreseeable harm of discouraging frank
and open dialogue among FBI staff deliberating over information being prepared
for FBI executives’ consideration. If FBI staff believed that their preliminary
comments and edits would be released to the public[,] it is foreseeable that agency
staff would refrain from making edits or comments. Thus, senior FBI leadership
would be less likely to gain the full and necessary understanding of the important
issues that serve as a basis for agency decision-making.
(ECF No. 31-1 at Ex. A, 10–19.)
In Natural Resources Defense Council v. U.S. Environmental Protection Agency, the
court found that the EPA’s supplemental affidavit “adequately articulated ‘the link between [the]
harm and the specific information contained in the material withheld,’” despite containing some
boilerplate language. No. 17-cv-5928, 2019 WL 4142725, at *5 (S.D.N.Y. 2017) (quoting
Judicial Watch I, 375 F. Supp. 3d at 101). In that case, however, the EPA provided
“substantially more context for the decisionmaking processes in question and the harms that
would reasonably ensue from disclosure of the material.” Nat. Resources Def. Council, 2019
WL 4142725, at *5 (“EPA explains in some detail how disclosure of records relating to the
Section 6(a) rulemakings, the pesticide registration reviews, the Chemical Data Reporting rules,
and the evaluation of existing regulations could prematurely disclose agency rulemakings or
policies that have not been finalized.”). DOJ has not provided the kind of link between the
alleged harm and the information in the withheld material that the court found in Natural
Resources Defense Council. Accordingly, DOJ has failed to show that it could “reasonably
foresee” that harm would result from disclosure.
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Consequently, the court will deny summary judgment for DOJ regarding Exemption 5.
The court will, however, permit DOJ to supplement the record regarding foreseeable harm.
Thus, the court will also deny summary judgment for Judicial Watch.
B. Appropriateness of In Camera Review
Judicial Watch asks the court to consider conducting in camera review to determine
whether DOJ’s assertion of Exemption 5 is proper. (Pl. Br. at 12.) FOIA authorizes courts to
examine in camera agency records withheld under any of the nine FOIA exemptions. 5 U.S.C.
§ 552(a)(4)(B). In camera review is a discretionary tool. Juarez v. U.S. Dep’t of Justice, 518
F.3d 54, 59–60 (D.C. Cir. 2008) (“It is true that FOIA provides district courts the option to
conduct in camera review, but it by no means compels the exercise of that option.”) (internal
citation omitted). Both Congress and the courts have made clear that while in camera review is
not required, it may be necessary to carry out the court’s “statutory obligation to conduct a
meaningful de novo review.” Allen v. CIA, 636 F.2d 1287, 1298 (D.C. Cir. 1980).
Because in camera review is “necessarily conducted without benefit of criticism and
illumination by a party with the actual interest in forcing disclosure,” the court should use it
sparingly. Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973). It is not a substitute for an
agency’s production of affidavits and Vaughn indices. See, e.g., Elec. Frontier Found. v. U.S.
Dep’t of Justice, 826 F. Supp. 2d 157, 175 (D.D.C. 2011) (rejecting in camera review and
directing the agency to revise their Vaugh submissions). “If the agency fails to provide a
sufficiently detailed explanation to enable the district court to make a de novo determination of
the agency’s claims of exemption, the district court then has several options, including inspecting
the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.”
Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998). However, “the best approach is to direct
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the agency to revise their Vaughn submissions, taking into account the deficiencies identified by
the Court.” Elec. Frontier Found., 826 F. Supp. 2d at 175.
Judicial Watch contends that the insufficiency of DOJ’s affidavits, the limited number of
pages at issue, and the strong public interest in disclosure tilt the balance in favor of in camera
review. (Pl. Br. at 12–13.) At this juncture, the court disagrees. While DOJ’s declarations and
Vaughn indices are currently insufficient to justify withholding documents under Exemption 5, it
should be given the opportunity to provide additional detail, taking into the account the
deficiencies identified in this opinion. See Elec. Frontier Found., 826 F. Supp. 2d at 175. This
is not a case where it is “impossible” for DOJ to provide “sufficiently detailed justifications.”
Allen, 636 F.2d at 1298. Therefore, the court will permit DOJ to supplement the record with
detailed factual support for its claim that disclosure of these drafts would harm the agency’s
deliberative process.
IV. CONCLUSION
For the reasons stated above, the court will DENY DOJ’s motion for summary judgment
and will DENY Judicial Watch’s cross-motion for summary judgment. A corresponding Order
will issue separately.
Date: September 29, 2020
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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