Committee on Oversight and Government Reform, United States House of Representatives v. Lynch

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
COMMITTEE ON OVERSIGHT AND )
GOVERNMENT REFORM, UNITED )
STATES HOUSE OF )
REPRESENTATIVES, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1332 (ABJ)
)
LORETTA E. LYNCH, )
Attorney General of the United States, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION AND ORDER
This case concerns a Congressional subpoena for documents from plaintiff, the
Committee on Oversight and Government Reform of the United States House of Representatives
(“Committee”) to the defendant, the Attorney General of the United States. 1 Before the Court is
plaintiff’s motion to compel the production of documents [Dkt. # 103], which the Court will
grant in part and deny in part.
INTRODUCTION
The pending motion is styled as a motion to compel, but it seeks the relief sought in the
lawsuit itself: an order compelling the production of certain documents responsive to an October
11, 2011 subpoena issued by the Committee to the Attorney General for records related to
Operation Fast and Furious. Compl. [Dkt. #1] ¶¶ 4, 7, 8. In particular, the action seeks those
1 Loretta E. Lynch replaced Eric H. Holder, Jr., as Attorney General on April 27, 2015.
Accordingly, pursuant to Federal Rule of Civil Procedure 25(d), Loretta E. Lynch is substituted
as defendant in this case.
1
records generated after February 4, 2011 that have been withheld on the grounds that they are
covered by the deliberative process prong of the executive privilege. Id. ¶ 14.
After the lawsuit was filed, the Department of Justice took the position that this Court
did not have – or should decline to exercise – jurisdiction over what the Department
characterized as a political dispute between the executive and legislative branches of the
government. The defense warned that it would threaten the constitutional balance of powers if
the Court endeavored to weigh the Committee’s stated need for the material against the
executive’s interest in confidential decision making, or if the Court were to make its own
judgment about whether the negotiation and accommodation process to date had been adequate.
Mem. in Supp. of Def.’s Mot. to Dismiss [Dkt. # 13-1] at 19–45. Individual Members of
Congress also urged the Court to stay its hand and entrust the matter to the time-honored
negotiation process. Memorandum Amici Curiae of Reps. Cummings, Conyers, Waxman,
Towns & Slaughter in Supp. of Dismissal [Dkt. # 30] (“Mem. Amici Curiae”).
In response to the motion to dismiss, the Committee argued that it was both lawful and
prudent for the Court to exercise jurisdiction since the case involved a discrete, narrow question
of law:
This type of case – at bottom, a subpoena enforcement case – has
been brought in and addressed by the courts in this Circuit many
times before . . . . Moreover, this case involves the purely legal
question of the scope and application of Executive privilege . . . .
Pl.’s Opp. to Def.’s Mot. to Dismiss [Dkt. # 17] at 6 (emphasis in original).
The Court agreed. Citing United States v. Nixon, 418 U.S. 683 (1974), it ruled that it had
not only the authority, but the responsibility, to resolve the conflict.
2
[T]he Supreme Court held that it was “the province and duty” of
the Court “‘to say what the law is’” with respect to the claim of
executive privilege that was presented in that case. Id. at 705,
quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
“Any other conclusion would be contrary to the basic concept of
separation of powers and the checks and balances that flow from
the scheme of a tripartite government.” Id. at 704. Those
principles apply with equal force here. To give the Attorney
General the final word would elevate and fortify the executive
branch at the expense of the other institutions that are supposed to
be its equal, and do more damage to the balance envisioned by the
Framers than a judicial ruling on the narrow privilege question
posed by the complaint.
Mem. Op. (Sept. 30, 2013) [Dkt. # 52] (“Mem. Op. on Mot. to Dismiss”) at 17–18; see also id. at
15–16, citing Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53, 84–85 (D.D.C. 2008).
The Committee then moved for summary judgment on the grounds that as a matter of
law, the executive branch could not invoke the deliberative process privilege in response to a
Congressional subpoena. Pl.’s Mot. for Summ. J. [Dkt. # 61]. In the Committee’s view, since
the records did not involve actual communications with the President that would raise separation
of powers concerns, they had to be produced. Mem. of P. & A. in Supp. of Pl.’s Mot. for
Summ. J. [Dkt. # 61] (“Pl.’s Summ. J. Mem.”). The Court ruled against the Committee on that
issue. Order [Dkt. # 81] (“Order on Mot. for Summ. J.”). It determined that there is an
important constitutional dimension to the deliberative process aspect of the executive privilege,
and that the privilege could be properly invoked in response to a legislative demand. Id. at 2,
citing In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997) (“Espy”).
However, the Court also found that defendant’s blanket assertion of the privilege over all
records generated after a particular date could not pass muster, because no showing had been
made that any of the individual records satisfied the prerequisites for the application of the
privilege. Order on Mot. for Summ. J. at 3–4. Defendant was ordered to review the responsive
3
records to determine which, if any, records were both pre-decisional and deliberative and to
produce any that were not. Id. at 4–5. Defendant was also ordered to create a detailed list
identifying all records that were being withheld on privilege grounds. Id. at 4.
The current motion pending before the Court marks the next stage in these proceedings,
as the Committee has moved to compel the production of every single record described in the
list, as well as a body of material that defendant did not include in the index. Pl.’s Mot. to
Compel (“Mot. to Compel”) [Dkt. # 103] and Mem. of P. & A. in Supp. of Pl.’s Mot. to Compel
(“Pl.’s Mem. for Mot. to Compel”) [Dkt. # 103-1]. Fundamentally, the Committee takes the
position that not one of the records is deliberative, and that even if some are, the privilege is
outweighed in this instance by the Committee’s need for the material. In particular, the
Committee seeks a declaration that intra-agency communications about responding to
Congressional and media requests for information are not covered by the privilege. Pl.’s Mem.
for Mot. to Compel at 26–29. It also argues that the right to invoke any privilege has been
vitiated by the Department’s own misconduct. Id. at 32 n.15.
As will be explained in more detail below, the Court rejects the Committee’s articulation
of the scope of the privilege. In accordance with other authority from this Circuit, the Court
finds that records reflecting the agency’s internal deliberations over how to respond to
Congressional and media inquiries fall under the protection of the deliberative process privilege.
It also finds that the defendant’s detailed list describes the records being withheld with sufficient
detail to support the assertion of the privilege.
But, as both parties recognize, the deliberative process privilege is a qualified privilege
that can be overcome by a sufficient showing of need for the material. Espy, 121 F.3d at 737–38.
4
This need determination is to be made flexibly on a case-by-case,
ad hoc basis. “[E]ach time [the deliberative process privilege] is
asserted, the district court must undertake a fresh balancing of the
competing interests . . . .”
Id., quoting In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634
(D.C. Cir. 1992). Thus, while the determination of whether the executive exceeded his authority
in withholding materials began with the sort of pure legal inquiry that undeniably rests with the
judiciary, following that process to its conclusion necessarily involves the kind of balancing that
may raise separation of powers concerns when the legislature is the other party involved.
In other words, now that that legal ruling that was the stated justification for the
invocation of this Court’s jurisdiction has been issued, prudential considerations could weigh
against going further and engaging in the balancing of the competing interests. But here, that
exercise can be accomplished without the sort of interference in legislative or executive matters
that courts should endeavor to avoid, and the Court can decide this case without assessing the
relative weight of the interests asserted by the other two co-equal branches of government.
There is no need for the Court to invade the province of the legislature and undertake its
own assessment of the legitimacy of the Committee’s investigation, because the Department of
Justice has conceded the point: it has repeatedly acknowledged the legitimacy of the
investigation. See e.g., Mem. in Supp. of Def.’s Mot. to Dismiss [Dkt. # 13-1] at 2–3 (referring
to “Congress’s legitimate oversight interests” and “legitimate investigative concerns”); Mem. in
Supp. of Def.’s Mot. for. Summ. J. & in Opp. to Pl.’s Mot. for Summ. J. [Dkt. # 63] (“Def.’s
Summ. J. Mem.”) at 7–9; Letter from James M. Cole to Darrell E. Issa (June 20, 2012) [Dkt. #
17-3] (“June 20 Cole Letter”) at 1 (“[T]he Department has provided a significant amount of
information to the Committee in an extraordinary effort to accommodate the Committee’s
legitimate oversight interests.”); and Tr. of May 15, 2014 Hearing at 72 [Dkt. # 79] (counsel for
5
defendant: “because we had had an inaccurate letter [] we believed that it was appropriate to
provide them with documents explaining that letter”).
Furthermore, there is no need to balance the need against the impact that the revelation of
any record could have on candor in future executive decision making, since any harm that might
flow from the public revelation of the deliberations at issue here has already been self-inflicted:
the emails and memoranda that are responsive to the subpoena were described in detail in a
report by the Department of Justice Inspector General that has already been released to the
public. See A Review of ATF’s Operation Fast and Furious and Related Matters (Redacted),
Office of the Inspector General Oversight and Review Division, U.S. Dep’t of Justice (Sept.
2012) (“IG Report”), https://oig.justice.gov/reports/2012/s1209.pdf.
Therefore, the Court finds, under the unique and limited circumstances of this case, that
the qualified privilege must yield, given the executive’s acknowledgment of the legitimacy of the
investigation, and the fact that the Department itself has already publicly revealed the sum and
substance of the very material it is now seeking to withhold. Since any harm that would flow
from the disclosures sought here would be merely incremental, the records must be produced.
The Court emphasizes that this ruling is not predicated upon a finding of wrongdoing.
The Committee’s motion also raises issues about the withholding of records on other
grounds and whether the subpoena was narrowed by agreement of the parties. Since the
Committee was quite clear when it invoked the jurisdiction of this Court that it was simply
asking for a ruling on the discrete question of law that has now been decided, the Court will
decline to interpose itself in the negotiations between the parties on those other issues or to rule
on questions that were not posed by the complaint. See Pl.’s Opp. to Mot. to Dismiss [Dkt. # 17]
at 43–44 (“Once the limits and application of the deliberative process privilege in the context of
6
the Holder Subpoena have been declared, the parties will know how to proceed.”). The
Committee has assured the Court that in the past, it has been willing and able to accommodate
legitimate concerns about revealing law enforcement, attorney-client privileged, or purely private
information and that it will be prepared to do so in the future. See Pl.’s Mem. for Mot. to
Compel at 22; Tr. of July 30, 2015 Hearing [Dkt. # 109] at 27–28. So now that the issues have
been substantially narrowed, all that is left to accomplish is the execution of a familiar set of
steps applying a familiar set of principles. Given that backdrop, notwithstanding the
Committee’s insistence that the time for negotiation about these particular records has passed,
the Court encourages the parties to start with a fresh slate and resolve the few remaining issues
with flexibility and respect.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 11, 2011, the Committee issued a subpoena to the Attorney General calling
for documents related to its investigation of a law enforcement initiative known as Operation
Fast and Furious. The operation, launched by the Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) and the U.S. Attorney’s office in Phoenix, Arizona in 2009, sought to address the
suspected illegal flow of firearms from the United States to drug cartels in Mexico. As part of
the investigation, law enforcement officers allowed straw purchasers to buy firearms illegally in
the United States and take them into Mexico without being apprehended – deliberately
permitting the guns to “walk” in order to track them to their destination. But after a U.S. law
enforcement agent was killed in December 2010 by a bullet fired from one of these guns, the
ATF’s tactic came under intense scrutiny.
Congress began inquiring into Operation Fast and Furious in early 2011, and on February
4, 2011, Assistant Attorney General Ronald Weich sent a letter to Senator Charles E. Grassley,
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Ranking Minority Member of the Committee on the Judiciary, denying that the tactic had been
utilized or that straw purchasers were permitted to transport firearms into Mexico without being
interdicted. Letter from Ronald Weich to Charles E. Grassley (Feb. 4, 2011) [Dkt. # 17-1]. Ten
months later, though, on December 2, 2011, the Deputy Attorney General officially retracted the
earlier denial and confirmed that in fact, federal investigators had permitted the weapons to leave
the country and enter Mexico. Letter from James M. Cole to Darrell E. Issa (Dec. 2, 2011) [Dkt.
# 17-2]. The Committee then expanded its investigation to look into the circumstances behind
the Justice Department’s initial inaccurate assurances, as well as when and how the Department
determined that the February 4 letter was incorrect and why it took as long as it did for Congress
to be informed. As part of that effort, the Committee issued the October 11, 2011 subpoena.
The Department produced a considerable volume of material that was responsive to the
subpoena, but it withheld all records created on or after February 4, 2011.
This response was not satisfactory to the Committee, and the parties engaged in several
months of negotiations concerning the post-February 4 documents. Ultimately, the Committee
threatened to hold the Attorney General in contempt of Congress for withholding the records.
The Committee scheduled a hearing on the contempt issue for June 20, 2012, and as the date
approached, additional letters were exchanged in an attempt to avert the vote. Letter from James
M. Cole to Darrell E. Issa (June 11, 2012) [Dkt. # 13-5]; Letter from Darrell E. Issa to Eric H.
Holder, Jr. (June 13, 2012) [Dkt. # 63-8] (“June 13 Issa Letter”); Letter from Eric H. Holder, Jr.
to Darrell E. Issa (June 14, 2012) [Dkt. # 13-4] (“June 14 Holder Letter”); Letter from James M.
Cole to Darrell E. Issa [Dkt. # 13-6] (June 19, 2012) (“June 19 Cole Letter”). This effort did not
bear fruit. On June 20, 2012, the Deputy Attorney General informed the Committee that the
President had asserted executive privilege over the documents in dispute – internal documents
8
related to the Department’s response to Congress – on the grounds that their disclosure would
reveal the agency’s deliberative processes. June 20 Cole Letter [Dkt. # 17-3]. His letter lies at
the heart of this action.
On August 13, 2012, the Committee filed this lawsuit to enforce the October 11, 2011
subpoena, Compl. [Dkt. # 1], and the complaint was amended in January of 2013 when the
incoming 113th Congress reissued the subpoena. Am. Compl. [Dkt. # 35]. On September 30,
2013, the Court denied defendant’s motion to dismiss for lack of subject matter jurisdiction,
Order [Dkt. # 51], and the parties subsequently filed cross-motions for summary judgment. The
Committee sought judgment on the grounds that the Attorney General could not invoke
executive privilege to shield records that did not involve direct communications with the
President, Pl.’s Summ. J. Mem. [Dkt. # 61], and the Department took the position that the entire
set of records was covered by the deliberative process prong of the executive privilege. Def.’s
Summ. J. Mem. [Dkt. # 63].
On August 20, 2014, the Court denied both motions without prejudice, holding that the
executive branch could properly invoke the deliberative process privilege in response to a
legislative demand, but that it could not do so unless the prerequisites for the application of the
privilege had been established. Order on Mot. for Summ. J. at 3.
The Court ordered the defense to review each of the withheld documents and to produce
all that were not both predecisional and deliberative. Id. at 4. With respect to those documents
for which a claim of privilege was still being asserted, the Court ordered the Department to
generate a detailed list identifying “the author and recipient(s) and the general subject matter of
the record being withheld, [and] the basis for the assertion of the privilege; in particular, . . . the
decision that the deliberations contained in the document precede.” Id.
9
On November 4, 2014, the Department produced 10,104 records that had been previously
withheld – totaling 64,404 pages. It also provided the detailed list of the records it deemed to be
privileged in whole or in part after the individualized review. Pl.’s Notice of Disputed Claims &
Other Issues [Dkt. # 98] at 2–3. On December 10, 2014, it produced a revised list, which it also
provided to the Court. Not. of Filing of Privilege List [Dkt. # 100].2 Defendant provided a third
revised list to plaintiff on February 19, 2015, which was not filed with the Court. Pl.’s Reply to
Def.’s Opp. to Pl.’s Mot. to Compel [Dkt. # 106] (“Pl.’s Reply”) at 1. Finally, on May 29, 2015,
the Department notified the Court that it had re-reviewed certain material withheld from the
Committee, and it transmitted a final revised detailed list to the Committee and the Court. Def.’s
Not. of Subsequent Developments. [Dkt. # 107].
Based on the Court’s review of defendant’s final revised list, which had a total of 17,835
entries, it appears that 4082 of the documents listed are duplicates wholly contained within other
documents on the list, leaving 13,753 unique documents. Of those, approximately 3307 were
released in full to plaintiff. The remaining 10,446 documents were withheld in whole or part:
Basis for Withholding Number of
Documents
Deliberative process privilege 5342
Law enforcement sensitive 3041
Privacy 1351
Other 310
Unrelated 394
No reason provided 8
2 The Court ordered the parties to file notice of any objections to the Court making the
revised list publically available on its website, Min. Order of Dec. 9, 2014, and upon receiving
none, the Court posted the list to its website. See http://www.dcd.uscourts.gov/dcd/sites/dcd/
files/DefsDetailedListofPrivDocsCtteHolder12-1332.pdf.
10
On January 16, 2015, plaintiff filed the instant motion to compel production of all the
documents on the revised detailed list, 3 and that motion has been fully briefed. Pl.’s Mot. to
Compel [Dkt. # 103] and Pl.’s Mem. for Mot. to Compel [Dkt. # 103-1]; Def.’s Mem. in Opp. to
Pl.’s Mot. to Compel [Dkt. # 104] (“Def.’s Opp. to Mot. to Compel”); Pl.’s Reply [Dkt. # 106].
ANALYSIS
The Committee asks the Court to order the Attorney General to produce all of the post-
February 4, 2011 documents that have been withheld. The Committee’s motion divides the
withheld materials into several categories:
1) materials withheld under the deliberative process privilege;
2) materials for which defendant has provided no basis for the
claim of privilege;
3) materials that defendant neither produced to the Committee nor
included on the detailed list; and
4) materials withheld on grounds other than the deliberative
process privilege.
With respect to the records the defense seeks to withhold as deliberative, the Committee argues
that the descriptions in the log are insufficient to support the invocation of the privilege, the
types of records described are not covered by the privilege, and the qualified privilege has been
outweighed in any event. The Court will address this category of material – which is the subject
of the lawsuit – first.
I. Documents withheld on the basis of deliberative process privilege
As this Court has already held, the executive privilege consists of two prongs: the
Presidential communications privilege and the deliberative process privilege. While the
3 The Court recognizes that the motion to compel was filed and briefed before defendant
produced its final revised list in May 2015, so the numbers of documents identified based on the
Court’s review of that list do not match those in the motion, which was based on earlier versions
of the list.
11
Presidential communications prong of the privilege may derive more protection from the
Constitution, the deliberative process privilege reaches beyond conversations with the President
to protect other communications among executive branch officials “crucial to fulfillment of the
unique role and responsibilities of the executive branch.” Espy, 121 F.3d at 736–37. This
privilege “allows the government to withhold documents and other materials that would reveal
advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Id. at 737.
For a document to be protected by the deliberative process privilege, it must be both
predecisional and deliberative. Id., citing Army Times Publ’g Co. v. Dep’t of the Air Force, 998
F.2d 1067, 1070 (D.C. Cir. 1993); Wolfe v. Dep’t of Health and Human Servcs., 839 F.2d 768,
774 (D.C. Cir. 1988). So in this case, the Court directed the Attorney General to prepare a
detailed list “that identifies and describes the material in a manner ‘sufficient to enable resolution
of any privilege claims,’” including “the author and recipient(s) and the general subject matter of
the record being withheld, . . . the basis for the assertion of the privilege; . . . in particular, . . . the
decision that the deliberations contained in the document precede.” Order on Mot. for Summ. J.
at 4, quoting Miers, 558 F. Supp. 2d at 107 and Fed. R. Civ. Proc. 45(e)(2)(A)(ii).
The Committee challenges the sufficiency of the entries on the list, see Pl.’s Mem. for
Mot. to Compel at 29–31, but the Court has reviewed the list and finds that with respect to the
bulk of the material being withheld as deliberative, the Attorney General has specified the
grounds for the assertion of the privilege with enough detail to permit the Court to rule on the
availability of the privilege as a legal matter. For example,
• Doc. No. 3, DOJ-FF-00003–00005, is a bulleted summary of
ATF reports, described as containing “draft reforms at ATF in
wake of Fast and Furious.” Revised Detailed List (Dec. 4,
2014).
12
• Doc. No. 251, DOJ-FF-00998–01001, is a draft email to the
Mexican government regarding Fast and Furious, described as
“discussing proposed email to Mexican government re FF
briefings.” Revised Detailed List (Dec. 4, 2014).
• Doc. No. 484, DOJ-FF-01939–01944, is an email discussing a
scheduled meeting, described as containing a “discussion of
proposed personnel action and recommendations concerning
internal Department management.” Revised Detailed List
(Dec. 4, 2014).
The Committee’s real problem with the list appears to be its contention that the sorts of
deliberations that are often described should not fall within the ambit of the privilege at all.
Compare Pl.’s Mem. for Mot. to Compel at 26–29 (arguing that deliberations about how to
respond to Congress and the press are not covered by the privilege) with Pl.’s Mem. for Mot. to
Compel at 30–32 (providing sample descriptions that it contends are insufficient involving many
of the same issues, including “proposed changes to a draft letter to Congress,” “discussing how
to respond to quote,” “how to communicate info to Congress and public”). 4
A. Documents reflecting the Department’s internal deliberations about how to
respond to Congressional and media inquiries about Operation Fast and
Furious are protected by the deliberative process privilege.
The deliberative documents at the center of this litigation concern communications within
the Department about how to respond to press and Congressional inquiries into Operation Fast
and Furious. In its complaint and motion for summary judgment, the Committee took the
position that these materials could not lawfully be withheld from the legislature because they did
not involve communications with the President, and the deliberative process privilege did not
4 Plaintiff also asserted that there are fifty-five documents that were withheld as
deliberative process privileged in defendant’s revised detailed list of December 4, 2014 for
which no “Withholding Description” was provided. Pl.’s Mem. for Mot. to Compel at 25; Ex. I
to id. Based upon the Court’s review of the final list of May 29, 2015, it appears that only
document, Doc. No. 9087, remains listed as deliberative process privileged with the Withholding
Description column left blank. Because defendant did not provide an adequate description of
why this document is covered by the privilege, defendant must produce it to plaintiff.
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have the same constitutional dimension as the executive communications privilege. In its order
of August 20, 2014, the Court held that the Attorney General could properly invoke the
deliberative process prong of the executive privilege in response to a Congressional subpoena,
but that it was necessary to do so on a document-by-document basis. Order on Mot. for Summ.
J. at 2–4.
Now the Committee contends that the documents that survived that review are not
covered by the deliberative process privilege because the privilege only applies to deliberations
concerning the development of policy. See Pl.’s Mem. for Mot. to Compel at 26–27 (asserting
that the privilege allows “agency decisionmakers to engage in that frank exchange of opinions
and recommendations necessary to the formulation of policy without being inhibited by fear of
later public disclosure” and must reflect “the ‘give-and-take’ of the deliberative process and
contain[] opinions, recommendations, or advice about agency policies”) (emphasis added by
plaintiff) (citations omitted); see also Pl.’s Mem. for Mot. to Compel at 27, quoting Pub.
Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 875 (D.C. Cir. 2009) (“To the extent the
documents . . . [do not] make recommendations for policy change . . . they are not predecisional
and deliberative despite having been produced by an agency that generally has an advisory
role.”) (emphasis added by plaintiff). 5
Notwithstanding the Committee’s added emphasis on the word “policy” found in selected
excerpts from opinions, the precedent that governs this Circuit does not hold that the privilege is
limited to deliberations concerning the formulation of policy.
5 Given this argument, the Committee does not appear to be challenging the application of
the privilege to records that have been plainly described as dealing with the development of
policy, such as Doc. No. 3, a bulleted summary of ATF reports containing “draft reforms at ATF
in wake of Fast and Furious.” DOJ-FF-00003–00005, Revised Detailed List (Dec. 4, 2014).
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The purpose of the privilege is to protect the decision-making process within government
agencies and to encourage “the frank discussion of legal and policy issues” by ensuring that
agencies are not “forced to operate in a fishbowl.” Mapother v. Dep’t of Justice, 3 F.3d 1533,
1537 (D.C. Cir. 1993), quoting Wolfe, 839 F.2d at 773. The Court of Appeals has applied that
privilege to such mundane operational matters as the selection of a vendor to provide data
retrieval services. Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 575 F.2d 932, 935 (D.C.
Cir. 1978) (“While [plaintiff] correctly notes that the end product of these Air Force
deliberations on the [Mead Data Central] proposal is not a ‘broad policy’ decision, that
deliberation is nonetheless a type of decisional process that Exemption 5 seeks to protect from
undue public exposure.”). 6 See also In re Apollo Grp., Inc. Sec. Litig., 251 F.R.D. 12, 29
(D.D.C. 2008) (holding that documents reflecting the Department of Education’s review of a
university’s compliance with Title IV were covered by the privilege and rejecting the argument
that a specific policy judgment is necessary for the privilege to apply because “the privilege
serves to protect the processes by which ‘governmental decisions’ as well as ‘policies’ are
6 The Committee cites New York Times Co. v. U.S. Dep’t of Defense, 499 F. Supp. 2d 501,
514 (S.D.N.Y. 2007) for the proposition that the privilege does not reach “routine operating
decisions.” Pl.’s Mem. for Mot. to Compel at 26, but it is the Mead Data opinion that has
precedential value here.
15
formulated”), citing Espy, 121 F.3d at 737 and NLRB v. Sears, Robuck & Co., 421 U.S. 132, 150
(1975). 7
And even if one were to draw a distinction between operational and policy-related
matters, in ICM Registry, LLC v. Dep’t of Commerce, 538 F. Supp. 2d 130 (D.D.C. 2008), the
district court recognized that internal deliberations about public relations efforts are not simply
routine operational decisions: they are “deliberations about policy, even if they involve
‘massaging’ the agency’s public image.” Id. at 136 (holding that internal e-mails about how to
present an agency decision to the public were covered by the deliberative process privilege).
Other courts in this district have reached similar conclusions. See Judicial Watch v. Dep’t of
Homeland Sec., 736 F. Supp. 2d 202, 208 (D.D.C 2010) (holding that documents concerning
“how to respond to on-going inquiries from the press and Congress” about the entry of a
government witness and Mexican national into the United States fell under the deliberative
process privilege); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Labor, 478 F.
Supp. 2d 77, 83 (D.D.C. 2007) (finding that deliberative process privilege covered email
messages discussing the agency’s response to news article); Judicial Watch, Inc. v. Reno, No.
00-0723, 2001 WL 1902811 (D.D.C. Mar. 30, 2001), at *3 (holding that deliberations about
7 Even the cases the Committee cites indicate that the privilege covers agency deliberations
about decisions, as well as the formulation of policy positions. In Taxation with Representation
Fund v. IRS, 646 F.2d 666, 677 (D.C. Cir. 1981), the Court stated, “the privilege protects
documents reflecting advisory opinions, recommendations, and deliberations comprising part of
a process by which governmental decisions and policies are formulated . . . .” See also Paisley v.
CIA, 712 F.2d 686, 698–99 (D.C. Cir. 1983), vacated on other grounds, 724 F.2d 201 (D.C. Cir.
1984) (holding that in analyzing whether materials are protected from disclosure under
Exemption 5 of FOIA – which protects materials covered by the deliberative process privilege –
a “court must first be able to pinpoint an agency decision or policy to which these documents
contributed,” and stating that the decision whether to prosecute an individual is the type of
decision protected by the privilege).
16
“how to handle press inquiries and other public relations issues” are covered by Exemption 5
under FOIA).
Following the same reasoning, the Court holds that documents withheld by defendant that
reveal the Department’s internal deliberations about how to respond to press and Congressional
inquiries into Operation Fast and Furious are protected by the deliberative process privilege. 8
B. Plaintiff’s need for the withheld documents outweighs the concerns that
underlie the privilege in this case because the substance of these internal
deliberations has already been made public.
On August 20, 2014, the Court ruled on the central issue it was asked to address in this
lawsuit: are internal agency documents that do not involve communications with the President
covered by the executive privilege? The answer was yes, if the documents are both deliberative
and pre-decisional. And the Court has now ruled on the subsidiary issue it was subsequently
asked to address: does that deliberative process prong of the executive privilege extend to cover
internal discussions about communications with Congress or the press? The answer to that
question is yes as well.
The decision that these withheld documents are privileged is just the first step of a two-
step analysis, though, because the law is clear that the deliberative process privilege is a qualified
one. Espy, 121 F.3d at 737.
[C]ourts must balance the public interests at stake in determining
whether the privilege should yield in a particular case, and must
specifically consider the need of the party seeking privileged
evidence.
Id. at 746.
8 In Waters v. U.S. Capitol Police Bd., 218 F.R.D. 323, 324 (D.D.C. 2003), a Magistrate
Judge determined that a document about “a particular investigation rather than the adoption of a
policy that applies to all cases of a particular nature or type” is not covered by the privilege, but
this Court is not bound to follow that opinion, which is not directly on point in any event.
17
Therefore, the question of whether the privilege has been outweighed is an essential
aspect of the legal analysis the Court agreed to undertake, and this second step involves
determining whether plaintiff’s need for the documents outweighs the defendant’s need to
protect them. To resolve this question, the Court must balance the competing interests on a
flexible, case by case, ad hoc basis, considering such factors as the relevance of the evidence, the
availability of other evidence, the seriousness of the litigation or investigation, the harm that
could flow from disclosure, the possibility of future timidity by government employees, and
whether there is reason to believe that the documents would shed light on government
misconduct, all through the lens of what would advance the public’s – as well as the parties’ –
interests. Id. at 737–38.
One factor the Espy opinion directs the balancing judge to consider is whether the
government is a party to the litigation, id. at 746, and in this case, the “government” is on both
sides of the dispute. Under those circumstances, the necessary “ad hoc” balancing could give
rise to the very concerns that prompted the Attorney General to argue that the case should be
dismissed on prudential grounds and the Ranking Member of the Committee and other
representatives to file an amicus brief in support of the motion. Mem. Amici Curiae at 9
(arguing that “this case implicates considerations of self-protection that are among the most
important reasons for the rules of judicial restraint discussed above – to enable courts to resist
being enlisted as one branch’s pawn in political fights”).
The Court is mindful of the principles that caution against judicial intervention in a
dispute between the other two branches, and it recognizes that those principles derive from the
balance of separate powers carefully enunciated in the Constitution. See Allen v. Wright, 468
U.S. 737, 752 (1984), abrogated on other grounds, Lexmark Int’l, Inc. v. Static Control
18
Components, Inc., 134 S. Ct. 1377 (2014) (“federal courts may exercise power only in the last
resort . . . and only when adjudication is consistent with a system of separated powers and [the
dispute is one] traditionally thought to be capable of resolution through the judicial process”)
(internal quotation marks omitted). But in the unique situation presented here, the Court can
decide this issue based on undisputed facts, without intruding upon legislative or executive
prerogatives and without engaging in what could otherwise become a troubling assessment of the
relative merit and weight of the interests being asserted by the either party.
Looking at the Espy factors, the Court first observes that the Attorney General has
repeatedly firmly acknowledged the seriousness and legitimacy of the Committee’s
investigation. See, e.g., Reply in Supp. of Def.’s Mot. to Dismiss [Dkt. # 27] at 1 (“The
Department has never taken the position that the Committee lacks the authority to investigate
. . . .”); Mem. in Supp. of Def.’s Mot. to Dismiss [Dkt. # 13-1] at 10 (“Ordinarily, the
Department does not provide to Congress internal Executive Branch materials generated in the
course of responding to a congressional inquiry. But in light of the acknowledged inaccuracies
in the February 4 Letter, the Department made a rare exception to its recognized protocols . . . .
The Department thereby gave the committee unprecedented access to deliberative materials
reflecting how the letter came to be drafted.”) (internal quotations omitted). And the defense
acknowledged the relevance of the materials sought here when it emphasized to the Court that
given the importance of the issues at stake, the Department had asked its Inspector General to
review the same records in order to answer the same questions. See Mem. in Supp. of Def.’s
Mot. to Dismiss at 9–10.
With respect to the harm that could flow from disclosure, the Department has explained
that the privilege was invoked because the release of deliberative records concerning
19
communications with Congress would cause significant damage. “In particular, ‘it would inhibit
the candor of such Executive Branch deliberations in the future and significantly impair the
Executive Branch’s ability to respond independently and effectively to congressional
oversight.’” Mem. in Supp. of Def.’s Mot. to Dismiss at 16, quoting Letter from Eric H. Holder,
Jr. to the President (June 19, 2012) (“June 19 Holder Letter”) at 1–2. 9 The law recognizes the
legitimacy of those concerns, and the principle that the Department sought to vindicate to protect
its deliberations in the future has been upheld in this opinion and in the Court’s previous rulings.
But the Court notes that in this case, the Department has pointed repeatedly to the
existence and thoroughness of the Inspector General investigation. See Mem. in Supp. of Def.’s
Mot. to Dismiss at 17–18 (stating that the “[t]he IG Report provides an extensive description of
the very events that the Committee has pursued here, . . . the Department’s responses to Congress
as they related to the disputed statements in the February 4 letter, . . . and the withdrawal of the
February 4 letter”); Reply in Supp. of Def.’s Mot. to Dismiss [Dkt. # 27] at 3 (“the IG report . . .
has changed the landscape, releasing a vast amount of information”); and id. at 24 (the IG report
and the release of related documents “comprehensively addressed the Department’s response to
congressional inquiries”). While the Department outlined these circumstances as part of the its
effort to persuade the Court to stay its hand altogether, and they relate – somewhat – to the Espy
9 The letter is not attached to defendant’s motion to dismiss, but a copy is available on
plaintiff’s website at https://oversight.house.gov/wp-content/uploads/2012/08/May-19-2011-
Holder-to-Obama.pdf.
20
factor of whether the information can be obtained elsewhere, 10 in the end, they serve to persuade
the Court that whatever incremental harm that could flow from providing the Committee with the
records that have already been publicly disclosed is outweighed by the unchallenged need for the
material.
What harm to the interests advanced by the privilege would flow from the transfer of the
specific records sought here to the Committee when the Department has already elected to
release a detailed Inspector General report that quotes liberally from the same records? See IG
Report at 329–417; see also Reply in Supp. of Def.’s Mot. to Dismiss at 25 (stating that the IG
Report “discloses vast amounts of information that the Committee purported to seek in its
Complaint”). The Department has already laid bare the records of its internal deliberations – and
even published portions of interviews revealing its officials’ thoughts and impressions about
those records. While the defense has succeeded in making its case for the general legal principle
that deliberative materials – including the sorts of materials at issue here – deserve protection
even in the face of a Congressional subpoena, it can point to no particular harm that could flow
from compliance with this subpoena, for these records, that it did not already bring about itself.
Also, in this particular case, it is prudent for the Court to resolve the matter given the
failure of the negotiation and accommodation process with respect to this particular issue to date.
The parties have been wrangling over the applicability of the deliberative process privilege since
10 The existence of the IG report does not necessarily establish that the evidence sought can
be obtained elsewhere, because the report described the emails and internal documents and
quoted them in part, but the source materials were not attached to the published report.
According to defendant, though, the documents “referenced in the report” were provided to the
Committee, Mem. in Supp. of Def.’s Mot. to Dismiss at 18, and that circumstance undermines
the Committee’s repeated assertions that the Department has been engaged in a wrongful
exercise to conceal the truth. But given the fact that through the report, the barn door on these
issues has been thrown wide open, why should Congress, if it is pursuing a legitimate
investigation, be limited to the records selected by the Inspector General for inclusion in his
report?
21
2011, and the Court took the extraordinary step of delaying its proceedings twice to refer the
matter to a senior U.S. District Judge to assist in the process, but those efforts did not succeed.
So, under the specific and unique circumstances of this case, the Court finds that the
qualified privilege invoked to shield material that the Department has already disclosed has been
outweighed by a legitimate need that the Department does not dispute, and therefore, the records
must be produced. This ruling is not predicated on a finding that the withholding was intended
to cloak wrongdoing on the part of government officials or that the withholding itself was
improper.
II. Withholdings and redactions for which defendant asserted no basis for its claim
of privilege
There are three smaller sets of records that present other concerns. First, the Committee
complains that defendant has withheld several documents without identifying any grounds for
the claim of privilege – that is, the “Withholding Basis” column of the detailed list was left
blank. Pl.’s Mem. for Mot. to Compel at 8–9. According to plaintiff, the revised detailed list of
December 4, 2014 included 380 of these entries. Id. at 8; Ex. E to id. The Court’s review of the
final revised detailed list of May 29, 2015 – excluding duplicate documents and documents
released in full – identified eight documents for which the “Withholding Basis” column remains
blank.
883 DOJ-FF-03842 to DOJ-FF-03844
6592 DOJ-FF-25558 to DOJ-FF-25558
6594 DOJ-FF-25561 to DOJ-FF-25561
7038 DOJ-FF-26927 to DOJ-FF-26927
7987 DOJ-FF-29733 to DOJ-FF-29736
8002 DOJ-FF-29766 to DOJ-FF-29769
22
9685 DOJ-FF-37439 to DOJ-FF-37441
14768 DOJ-FF-60507 to DOJ-FF-60507.012
These records must be produced.
The Court ordered defendant to prepare a detailed list that would “identif[y] and
describe[] the material in a manner ‘sufficient to enable resolution of any privilege claims.’”
Order on Mot. for Summ. J. [Dkt. # 81] at 4, quoting Miers, 558 F. Supp. 2d at 107; see also Fed.
R. Civ. Proc. 45(e)(2)(A)(ii). Failure to provide any grounds for withholding particular records
does not comply with the order or enable the Court to resolve defendant’s privilege claims as to
those documents. Accordingly, defendant must produce the material withheld without any
proffered justification.
III. Documents that defendant did not produce originally and did not include on the
detailed list
In its motion, the Committee asks the Court to compel defendant to produce all of the
responsive records in its possession dated after February 4, 2011, including records that were not
described in defendant’s detailed list of documents covered by the deliberative process privilege.
Pl.’s Mem. for Mot. to Compel at 3–8. The Department explains that the documents it did not
include in the list are those that the Committee “took off the table” in 2012 when the parties were
attempting to negotiate a resolution to the looming contempt proceedings. Def.’s Opp. to Mot. to
Compel [Dkt. # 104] at 35–45. According to defendant, the Committee agreed to narrow the
scope of the subpoena at that time, so when the President asserted the executive privilege in June
of 2012, his action covered only the set of materials that was still at issue. Thus, defendant
argues, any other records are not the subject of this lawsuit challenging that assertion of the
privilege. See id. at 36–38.
23
The Committee takes the position that any accommodations were simply offers that were
rejected by the Attorney General, and that this action to enforce a valid subpoena covers all
records responsive to that subpoena. Pl.’s Mem. for Mot. to Compel at 3–8.
Both parties point to a series of communications in the spring of 2012 to support their
positions. On May 3, 2012, Committee Chairman Darrell Issa reminded the rest of the
Committee that when the Committee issued the subpoena “for Justice Department documents,
the Committee specified 22 categories of documents it required the Department to produce.”
Mem. from Darrell E. Issa to Members, Committee on Oversight and Government Reform (May
3, 2012) (“May 3 Issa Mem.”), at 9. 11 He then reported:
[S]ome important areas remain cloaked in secrecy:
• How did the Justice Department finally come to the conclusion
that Operation Fast and Furious was “fundamentally
flawed”? . . .
• What senior officials at the Department of Justice were told
about or approved the controversial gunwalking tactics that
were at the core of the operation’s strategy? . . .
• How did inter-agency cooperation in a nationally designated
Strike Force fail so miserably in Operation Fast and Furious?
May 3 Issa Mem. at 7–9.
After further negotiations, Speaker of the House Rep. John Boehner wrote a letter to the
Attorney General stating that although the Department had provided some documents in
response to the subpoena, “two key questions remain unanswered: first, who on your leadership
team was informed of the reckless tactics used . . . and, second, did your leadership team mislead
11 This document is available at http://oversight.house.gov/wp-content/uploads/2012/05/
Update-on-Fast-and-Furious-with-attachment-FINAL.pdf.
24
or misinform Congress in response to a Congressional subpoena?” Letter from John Boehner to
Eric H. Holder, Jr. (May 18, 2012) [Dkt. # 63-9] (“May 18 Boehner Letter”) at 1. 12
On June 13, 2012, the Committee wrote to the Attorney General:
[A] May 3, 2012, Committee memo identified three categories of
documents necessary for Congress to complete its investigation
into Operation Fast and Furious. On May 18, House leaders and I
narrowed this request to two categories: (1) information showing
the involvement of senior officials during Operations Fast and
Furious, and (2) documents from after February 4, 2011, related to
the Department’s response to Congress and whistleblower
allegations. . . .
[O]n Monday, June 11, the Committee further narrowed the focus
of what the Justice Department needs to produce to avoid
contempt. This further accommodation . . . focused on the
aforementioned relevant materials created after February 4, 2011 –
after Operation Fast and Furious ended. This accommodation by
the Committee effectively eliminated the dispute over information
gathered during the criminal investigation of Operation Fast and
Furious . . . . Despite this proposed compromise by the
Committee, the Department has not indicated a willingness to
accept these terms.
June 13 Issa Letter at 1 [Dkt. # 63-8].
On June 14, 2012, the Attorney General responded to the Committee, expressing
“appreciat[ion] that the Committee has narrowed its request for information related to its review
of Operation Fast and Furious and now no longer seeks sensitive law enforcement information
arising out of that investigation.” June 14 Holder Letter [Dkt. # 13-4] at 1.
The parties met on June 19, 2012 but failed to resolve the impasse. See June 19 Cole
Letter [Dkt. # 13-6] at 1.
12 According to defendant, this accommodation eliminated plaintiff’s demand for
information about “how the inter-agency task force failed.” Def.’s Opp. to Mot. to Compel at
37, quoting H.R. REP. NO. 112-546, at 38 (“As an accommodation to the Department, the letter
offered to narrow the scope of documents the Department needed to provide in order to avoid
contempt proceedings.”).
25
That same day, the Attorney General wrote a letter to the President about the matter.
“The Committee has made clear that its contempt resolution will be limited to internal
Department ‘documents from after February 4, 2011, related to the Department’s response to
Congress.’” June 19 Holder Letter, quoting June 13 Issa Letter at 1–2. He asked the President
“to assert executive privilege over these documents.” Id. at 1 (emphasis added). “They were not
generated in the course of the conduct of Fast and Furious. Instead, they were created . . . in the
course of the Department’s deliberative process concerning how to respond to congressional and
related media inquiries into that operation.” Id. at 1–2.
On June 20, 2012, Deputy Attorney General Cole advised the Committee of the
President’s decision on the Attorney General’s request: “I write now to inform you that the
President has asserted executive privilege over the relevant post-February 4, 2011, documents.”
June 20 Cole Letter [Dkt. # 17-3] at 1.
According to defendant, the parties’ negotiations left at issue only the “documents the
Department refuse[d] to produce on the grounds that they reflect internal Department
deliberations.” Def.’s Opp. to Mot. to Compel at 29, quoting June 13 Issa Letter. It appears, as
the complaint alleges and the records reflect, that it was this narrowed set that was submitted to
the President for his consideration, and that the President’s assertion of executive privilege
related to those particular deliberative materials. See Am. Compl. ¶¶ 14–15. And it also appears
from the correspondence that the focus of the Committee’s inquiry became more sharply defined
over time. But it is not clear from a review of the communications that the parties agreed that the
Committee would forego any interest in the broader universe of responsive records for all time
since there was no meeting of the minds. Yes, the Committee offered to take several categories
of documents off the table, and yes, the Chairman said that this “effectively eliminated” the
26
dispute over records created during the ongoing law enforcement operation, but it appears that
those offers were made in the context of a negotiation, in return for something the Committee
never received.
In any event, the Court is not obligated to unravel all of the threads that have become
tangled in this dispute, and it would not be prudent for it to do so. It is not necessary to decide
which of the parties’ unduly argumentative pleadings – which rely heavily on their own self-
serving correspondence – characterizes the state of the negotiations more accurately. And the
Court does not need to define the scope of the “post-February 4 subset,” a term apparently
coined by the Committee and used in the complaint but none of the previous correspondence, or
the “Executive Privilege Set,” a term put forward by counsel for the Department. See Pl.’s Reply
[Dkt. # 106] at 2, 3, 6, and 14. In the end, the Court did not – and it should not – accept an
assignment to supervise the entire contentious relationship between these parties. It took
jurisdiction over the single, legal issue presented by the complaint, and what the lawsuit is about
is clear.
The lawsuit challenged the Attorney General’s withholding of documents on the grounds
of executive privilege, and the correspondence reveals that the President asserted executive
privilege over the same records underlying the Committee’s decision to hold the Attorney
General in contempt: those related to the Department’s response to the congressional
investigation into Operation Fast and Furious. See also Am. Compl. ¶¶ 14–15.
27
As the Committee explained in both the amended complaint 13 and its opposition to the
defendant’s original motion to dismiss:
The Committee legally is entitled to all documents responsive to
the Holder Subpoena that have not been produced. Nevertheless,
in this action, the Committee seeks to enforce that subpoena only
as to a subset of post-February 4, 2011 responsive documents (the
“Post-February 4 Subset,” Compl. ¶ 62). That subset is particularly
relevant to the Committee’s efforts to determine whether DOJ
deliberately attempted to obstruct the Committee’s investigation
by, among other things, lying to the Committee or otherwise
providing it with false information.
The principal legal issue presented in this case is whether the
Attorney General may withhold this responsive subset on the basis
of the President’s assertion of Executive privilege over internal
agency documents that reflect no advice to or communications
with him.
Pl.’s Opp. to Def.’s Mot. to Dismiss [Dkt. # 17] at 3. Indeed, the Committee urged the Court to
exercise jurisdiction to resolve the case precisely because it presented such a narrow,
“quintessentially legal” question:
The dispute here revolves around the applicability of the
deliberative process privilege – which the Attorney General casts
as a form of Executive privilege – to a congressional subpoena. By
determining (i) whether this privilege may validly be asserted in
response to the Holder Subpoena, and (ii) whether the Attorney
General’s failure to produce to the Committee the Post-February 4
Subset of documents is without legal justification and violates his
legal obligations to the Committee, see Compl. ¶¶ 62–81, the Court
definitively will resolve the controversy between the parties . . . .
13 Am. Compl. Introduction at 3 (“While the Committee is entitled to all documents
responsive to the Holder Subpoena that have not been produced, the Committee seeks in this
action to enforce the Holder Subpoena only as to a limited subset of responsive documents,
namely those documents relevant to the Department’s efforts to obstruct the Committee’s
investigation. The principal legal issue presented here is whether the Attorney General may
withhold that limited subset on the basis of “Executive privilege” where there has been no
suggestion that the documents at issue implicate or otherwise involve any advice to the
President, and where the Department’s actions do not involve core constitutional functions of the
President.”); see also Am. Compl. ¶ 67.
28
Once the limits and application of the deliberative process
privilege in the context of the Holder Subpoena have been
declared, the parties will know how to proceed.
Id. at 43–44.
According to the Committee, then, this Court’s work is done, and the Court agrees.
What the Court undertook to address is whether the Attorney General could lawfully
withhold those responsive documents dated after February 4 over which the executive had
asserted the deliberative process privilege. On August 20, 2014, the Court answered the primary
legal question and ruled that that the deliberative process privilege was a legitimate prong of the
constitutionally-based executive privilege that could be validly asserted in response to a
Congressional subpoena to shield records as long as they were both deliberative and
predecisional. Order on Mot. for Summ. J. [Dkt. # 81]. The Court went further today and
answered the remaining subsidiary legal question: whether internal deliberations concerning
communications with the press and Congress fell within the scope of the privilege.
The Court has already ordered that any records that were withheld on June 20, 2012 but
were not both deliberative and predecisional had to be produced, Order on Mot. for Summ. J. at
4, and, applying the Espy factors, it has ordered today that even the privileged, deliberative
records related to how the Department would respond to congressional and related media
inquiries into Operation Fast and Furious must also be produced. But any responsive documents
that were not embraced in that privilege assertion are an entirely separate matter, and
intervention in that dispute would entangle the Court in an ongoing political dispute of the sort
that is not suitable to judicial resolution. See Allen, 468 U.S. at 752; see also Baker v. Carr, 369
U.S. 186, 217 (1962); United States v. AT&T, 551 F.2d 384, 390 (D.C. Cir. 1976). The
unresolved legal issue that posed the primary impediment to a negotiated solution has been
29
alleviated, and the process of negotiation and accommodation has not been exhausted with
respect to any of the other issues.
IV. Documents and redactions withheld on a basis other than the deliberative process
privilege
Plaintiff also asserts that defendant must be ordered to produce any documents that were
either redacted or withheld in their entirety for reasons other than the deliberative process
privilege, Pl.’s Mem. for Mot. to Compel at 9–24 – which defendant withheld because they
contained “certain law enforcement sensitive material, records implicating sensitive foreign
policy concerns, attorney-client privileged information, material protected by the attorney work
product doctrine, and personal privacy information.” Def.’s Opp. to Mot. to Compel at 27–28.
These issues are best left to the process of negotiation and accommodation as well.
The Committee takes the position that these privileges have been waived since the
defense has never asserted them in this litigation. Pl.’s Mem. for Mot. to Compel at 10–14; Pl.’s
Reply at 8–11. While both parties made it clear that the litigation was about the scope of the
deliberative process privilege, and defendant formally eschewed any reliance on the Presidential
communications privilege, Joint Status Report [Dkt. # 32] at 5, it has not been established that
the Department waived its right to rely on the other grounds as it ordinarily does in response to
Congressional subpoenas. See Letter from James M. Cole to Darrell E. Issa (May 15, 2012)
[Dkt. # 63-3] (explaining why law enforcement sensitive information was redacted from
document productions); Letter from Ronald Weich to Darrell E. Issa (Apr. 19, 2012) (requesting
that the Committee refrain from contacting or subpoenaing cooperating and other witnesses in
indicted federal criminal cases as part of its investigation of Operation Fast and Furious while the
criminal matters remain pending), https://oversight.house.gov/wp-content/uploads/2012/08/
April-19-2011-Weich-to-Issa.pdf; see also Mem. Amici Curiae at 15–16 [Dkt. # 30].
30
Indeed, at oral argument, counsel for the Committee acknowledged that these are
privileges that are regularly respected in legislative requests for information as a matter of
comity. But he took the position that the Committee “does not have sufficient trust in the
Department of Justice to take the Department’s word on [redactions].” Tr. of July 30, 2015
Hearing [Dkt. # 109] at 49. The legitimacy of these privileges is not an issue that was presented
in the complaint, and prudential concerns dictate that these questions are more appropriately
resolved by the parties in the first instance. As for whether the redactions are what they purport
to be, the Court notes that counsel for even the most disputatious parties are often called upon to
trust each other, and that the judiciary relies regularly on declarations by the executive branch
that matters redacted from FOIA productions are what they are described to be in the Vaughn
index. See Loving v. U.S. Dep’t of Def., 550 F.3d 32, 41 (D.C. Cir. 2008) (holding that district
court had not abused its discretion by relying on agency’s Vaughn index and declaration in
determining whether a disputed document contained segregable portions); Judicial Watch, Inc. v.
Consumer Fin. Prot. Bureau, 60 F. Supp. 3d 1, 13 (D.D.C. 2014) (“The reviewing court may
rely on the description of the withheld records set forth in the Vaughn index and the agency’s
declaration that it released all segregable information.”). The Court has been provided with no
reason to believe that its assistance is needed to verify for counsel for one branch of government
assertions made in pleadings by an officer of the court representing another, equal branch of
government. If in the end, a neutral is required to read each individual redaction and confirm
that what the Department claims is simply a name or a telephone number is in fact a name or a
telephone number, the parties can arrange for that on their own.
31
CONCLUSION
For the reasons stated above, it is ORDERED that plaintiff’s motion to compel [Dkt.
# 103] is GRANTED insofar as it calls for the production of documents responsive to the
October 11, 2011 subpoena that concern the Department of Justice’s response to congressional
and media inquiries into Operation Fast and Furious which were withheld on deliberative process
privilege grounds, and it is GRANTED with respect to the nine documents for which no
justification for the invocation of the privilege has been provided: document numbers 9087, 883,
6592, 6594, 7038, 7987, 8002, 9685, and 14768. In all other respects, it is DENIED. Records
subject to this order shall be produced to plaintiff by February 2, 2016.
It is further ORDERED that by February 2, 2016, defendant shall produce to plaintiff all
segregable portions of any records withheld in full or in part on the grounds that they contain
attorney-client privileged material, attorney work product, private information, law enforcement
sensitive material, or foreign policy sensitive material. Whether any additional records or
portions of records are to be produced is a matter to be resolved between the parties themselves.
Finally, it is further ORDERED that the parties shall file a notice by February 2, 2016
setting forth their joint position (or separate positions if they cannot agree) on whether, in light of
this order resolving all of the pending issues in the case, the case should now be dismissed as
moot, and if not, how the Court should proceed.
SO ORDERED.
AMY BERMAN JACKSON
United States District Judge
DATE: January 19, 2016
32