Cause of Action Institute v. Export-Import Bank of the United States

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CAUSE OF ACTION INSTITUTE,
Plaintiff,
v. Civil Action No. 19-1915 (JEB)
EXPORT-IMPORT BANK OF THE
UNITED STATES,
Defendant.
MEMORANDUM OPINION
This case involves two Freedom of Information Act requests submitted by Plaintiff Cause
of Action Institute, a self-styled non-partisan government-oversight organization, to Defendant
Export-Import Bank of the United States, an independent agency tasked with fostering economic
growth by financing exports of various goods and services. In competing Motions for Summary
Judgment, the parties focus on the Bank’s redactions to several hundred pages of responsive
records, most of which it withheld under the deliberative-process privilege. Although the Court
had hoped to settle the propriety of all such withholdings in one fell swoop, an array of
unfortunate shortcomings in the Government’s current record renders swift resolution
impracticable. The Court, accordingly, delivers a mixed bag of results: it will affirm the
agency’s nondisclosure of some records, order the release of another group, and require it to go
back and further show its work should it wish to continue withholding still others.
I. Background
As the procedural history undergirding the present Motions is relatively straightforward,
the Court need only briefly summarize it before turning to the merits of the parties’ various
1
disputes. Plaintiff filed a FOIA request on September 20, 2018, for records reflecting
communications involving four senior EXIM officials regarding a series of individuals and
business entities. See ECF No. 1-1 (FOIA Request # 201800076F). It followed up that initial
entreaty with another on May 24, 2019, this time seeking additional records from agency
officials pursuant to a handful of new search terms. See ECF No. 1-3 (FOIA Request
# 201900047F). Although the Institute’s proposed keywords resist concise summary, it
describes its requests as seeking communications among EXIM employees during congressional
hearings for Kimberly Reed’s nomination to be the Bank’s President, as well as information
relating to certain Government Accountability Office oversight activities. See ECF No. 1
(Complaint), ¶ 1. After EXIM failed to immediately respond, Plaintiff brought this suit on June
26, 2019.
The agency eventually issued full and final responses to both requests, producing non-
exempt portions of a combined 783 responsive records totaling 7,633 pages between August
2019 and February 2020. See ECF No. 27-3 (Declaration of Lennell Jackson), ¶ 47; ECF No. 22
(3/3/20 Joint Status Rep.) at 1–2. In so doing, EXIM fully or partially redacted a number of
documents, largely citing FOIA Exemptions 5 and 6 as its bases for nondisclosure. Dissatisfied
with certain of those withholdings, Plaintiff informed the Bank of its intention to challenge them.
See ECF No. 28-4 (Declaration of Ryan P. Mulvey), ¶ 6; see also id. at ECF pp. 30–474
(disputed redacted records). That notice eventually prompted Defendant to move for summary
judgment, see ECF No. 27-2 (Def. MSJ), which the Institute opposed with its own Cross-Motion.
See ECF No. 28-1 (Pl. MSJ & Opp.).
Following the completion of briefing, the Court, in an effort to better understand the
withholdings at issue, requested EXIM to submit clean and redacted copies of all disputed
2
documents for in camera review. See ECF No. 35 (Notice). Having now reviewed such
submissions, the Court is ready to rule.
II. Legal Standard
Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, 477 U.S. 242, 247–48 (1986); Holcomb v. Powell,
433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at
895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”
by “citing to particular parts of materials in the record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a
FOIA case, a court may grant summary judgment based solely on information provided in an
agency’s affidavits or declarations when they “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.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith,
which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of
3
other documents.’” SafeCard Servs., Inc. v. SEC, 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)). “FOIA expressly
places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine
the matter de novo.’” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S.
749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
III. Analysis
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(citation omitted). The statute promotes these aims by providing that “each agency, upon any
request for records which (i) reasonably describes such records and (ii) is made in accordance
with published rules[,] . . . shall make the records promptly available to any person.” 5 U.S.C.
§ 552(a)(3)(A). The Government need not, however, turn over requested information that falls
into one of nine statutorily created exemptions from FOIA’s broad directive. See id.§ 552(b)(1)–(9). “While those exemptions must be narrowly construed, they still must be given
meaningful reach and application.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015)
(internal quotation marks and citations omitted). This Court can compel the release of any
records that do not satisfy the requirements of at least one exemption. See Reporters Comm.,
489 U.S. at 755.
A “veritable avalanche of FOIA-related precedent” guides this Court’s determination of
whether the Government has carried its burden of establishing that a given exemption applies.
Ullah v. CIA, 435 F. Supp. 3d 177, 182 (D.D.C. 2020). In order to show that certain information
is exempt from FOIA, “an agency may file ‘affidavits describing the material withheld and the
manner in which it falls within the exemption claimed.’” Bin Ali Jaber v. U.S. Dep’t of Def.,
4
293 F. Supp. 3d 218, 224 (D.D.C. 2018) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210,
217 (D.C. Cir. 1987)). Ultimately, “when an agency seeks to withhold information, it must
provide a relatively detailed justification, specifically identifying the reasons why a particular
exemption is relevant.” Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting King,
830 F.2d at 219). “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it
appears ‘logical’ or ‘plausible.’” Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370,
374–75 (D.C. Cir. 2007)).
Although Plaintiff does not contest the adequacy of EXIM’s search for responsive
records, its varied challenges to a bevy of the agency’s withholdings ensure no paucity of knots
for the Court to untangle. As the Bank predicates nearly all of its redactions on Exemption 5, the
Court will spend most of its time there. It then shifts to Exemption 6 before briefly concluding
with the agency’s claim that select portions of one record are not subject to FOIA at all. The
Court, thankfully, need not tackle EXIM’s separate argument that Exemption 4 independently
justifies certain overlapping withholdings for which it also cites Exemption 5, see Jackson Decl.,
¶ 26; as will soon become clear, the Court’s resolution of the application of the latter exemption
renders unnecessary any discussion of the former, at least for now. See Ctr. for Nat’l Sec.
Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (explaining that court “need
not address [any] other exemptions invoked” for particular withholding justified by a single
exemption).
A. Exemption 5
Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). Withholdings are restricted to “those documents, and only those documents,
5
normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 149 (1975); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 798–99 (1984).
The exemption encompasses three distinct components — namely, the deliberative-process
privilege (sometimes referred to as “executive privilege”), the attorney-client privilege, and the
attorney-work-product privilege. See Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., 905
F. Supp. 2d 206, 216 (D.D.C. 2012). Here, the Court need only concern itself with the first, save
for a fleeting foray into the attorney-client privilege for a single record.
The deliberative-process privilege shields internal agency “advisory opinions,
recommendations and deliberations” in order to “protect[] the decision making processes of
government agencies.” Sears, 421 U.S. at 150 (citations and internal quotation marks omitted).
It “rests on the obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page news.” Dep’t of
Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001). In other words, “if
agencies were forced to ‘operate in a fishbowl,’” the “quality of administrative decision-making
would be seriously undermined . . . because the full and frank exchange of ideas on legal or
policy matters would be impossible.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566
F.2d 242, 256 (D.C. Cir. 1977).
To qualify under the privilege, a record must meet two requirements. First, it must be
predecisional — i.e., “generated before the adoption of an agency policy.” Judicial Watch, Inc.
v. U.S. Dep’t of Def., 847 F.3d 735, 739 (D.C. Cir. 2017) (citation omitted). Second, a record
must be deliberative, meaning that it “reflect[s] the give-and-take of the consultative process.”
Id. (citation omitted). In this way, Exemption 5 focuses on documents containing information
6
that composes “part of a process by which governmental decisions and policies are formulated.”
Sears, 421 U.S. at 150 (citation omitted).
Additionally, in the context of Exemption 5, “an agency may withhold information —
even if it falls within the four corners of the exemption — ‘only if . . . the agency reasonably
foresees that disclosure would harm an interest protected by’ [that] exemption.” Rosenberg v.
U.S. Dep’t of Def., 442 F. Supp. 3d 240, 256 (D.D.C. 2020) (quoting 5 U.S.C.
§ 552(a)(8)(A)(i)(I)); see also S. Rep. No. 114-4 at 8 (2015). To satisfy this standard, 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,” and it must “connect [such]
harms in a meaningful way to the information withheld.” Ctr. for Investigative Reporting v. U.S.
Customs & Border Prot., 436 F. Supp. 3d 90, 106 (D.D.C. 2019) (cleaned up) (citation omitted).
While “boilerplate” articulations of harm are insufficient, id. (citation omitted), the government
need not “identify harm likely to result from disclosure of each of its Exemption 5
withholdings.” Rosenberg v. U.S. Dep’t of Def., 342 F. Supp. 3d 62, 79 (D.D.C. 2018). Rather,
it “may take a categorical approach” and “group together like records,” explaining “the
foreseeable harm of disclosure for each category.” Id. at 78.
According to Defendant, the deliberative-process privilege protects the overwhelming
majority of disputed documents from disclosure. Plaintiff, unsurprisingly, disagrees. Guided by
the agency’s declaration, its Vaughn Index, and in camera review, the Court must determine
whether the records at issue qualify as inter- or intra-agency materials, may be considered both
predecisional and deliberative, and will result in foreseeable harm if disclosed. For ease of
analysis, the Court sorts the documents withheld under this exemption into the following broad
categories: 1) internal EXIM documents; 2) communications regarding political nominees; and
7
3) productions and responses to the Government Accountability Office. (When citing individual
pages, the Court will follow Plaintiff’s lead and refer to the records by their production set and
page number — i.e., 201800076F0007 — which generally tracks the agency’s pagination in its
Vaughn Index and in camera submission. See Mulvey Decl. at ECF pp. 30–474; ECF No. 27-4
(Vaughn Index) at 1–4.
1. Internal EXIM Documents
EXIM withheld an array of internal agency materials from its production, which, at the
risk of excessive sub-categorization, both parties generally describe as follows: portfolio risk-
management reports, cybersecurity recommendations, senior staff reports, and several
miscellaneous documents. See Def. MSJ at 13–16; Pl. MSJ & Opp. at 21–22, 24, 26; Vaughn
Index at 1–3. Plaintiff does not dispute that all of these documents satisfy Exemption 5’s
threshold requirement of “inter-agency or intra-agency memorandums or letters.” 5 U.S.C.
§ 552(b)(5). The parties’ disagreement instead turns on whether they are both predecisional and
deliberative, as well as whether the agency has established the requisite foreseeable harm from
their potential disclosure. Because that analysis differs according to the precise record at issue,
the Court will consider each of the above categories seriatim.
a. Portfolio Risk-Management Reports
Start with EXIM’s portfolio risk-management reports. The Bank withheld two of these
documents, see Vaughn Index at 1, which contain “staff analysis” of numerous Bank transactions
that “have developed credit issues since they were approved.” Jackson Decl., ¶ 38a. The Court
finds that both were properly reserved.
As discussed above, in order for a record to qualify as “predecisional,” it must predate a
particular agency decision or policy. Judicial Watch, 847 F.3d at 739 (citation omitted). An
8
agency may properly make that showing by “pinpoint[ing]” such later “decision or policy to
which the document contributed.” Senate of the Commonwealth of P.R. v. U.S. Dep’t of Justice,
823 F.2d 574, 585 (D.C. Cir. 1987) (citation omitted). There is more than one way, however, to
skin this cat. Because not all deliberative discussions culminate in a “single, discrete decision,”
an agency may also satisfy its burden by “identifying the decisionmaking process” in which the
record played a role. Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991);
see also Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762
F. Supp. 2d 123, 135–36 (D.D.C. 2011) (“[E]ven if an internal discussion does not lead to the
adoption of a specific government policy, its protection under Exemption 5 is not foreclosed as
long as the document was generated as part of a definable decision-making process.”).
Here, Defendant has satisfactorily established the “decisionmaking process” to which the
reports contribute. Access Reports, 926 F.2d at 1196. Marshaling both quantitative and
qualitative data, and addressing the Bank’s vulnerable transactions both individually and
collectively, the reports examine in considerable detail various “risks presented by these
transactions,” identify potential “remedies to address” such risks, and assess the likelihood of full
and partial recovery. See Jackson Decl., ¶ 38a. EXIM’s Enterprise Risk Committee (ERC), in
turn, uses these reports as a key source of information as it engages in the ongoing work of
monitoring credit risks across scores of transactions and minimizing exposure when appropriate.
See Def. MSJ at 13; ECF No. 31 (Def. Reply & Opp.) at 15. The Bank’s account of the relevant
decisionmaking process in which the documents play a role plainly establishes their
predecisional nature. See Access Reports, 926 F.2d at 1196 (document predecisional where it
contributed to agency’s “study of how to shepherd [a] bill through Congress”); Leopold v. CIA,
89 F. Supp. 3d 12, 19–20 (D.D.C. 2015) (documents predecisional where they “were created to
9
aid senior agency officials’ deliberations about how to respond to” various issues as part of
ongoing, multi-year process).
In response, Plaintiff musters only that these reports “may no longer [be] predecisional to
the extent [EXIM] decided to finalize action and rely on [the] agency staff’s recommendations
and analysis.” Pl. MSJ & Opp. at 21. It is true that predecisional documents “can lose that status
if [they are] adopted, formally or informally, as the agency position on an issue.” Coastal States
Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). “To adopt a deliberative
document,” however, “it is not enough for an agency to make vague or equivocal statements
implying that a position presented in a deliberative document has merit.” Judicial Watch, 847
F.3d at 739. Nor can an agency simply reference a report’s conclusions. Access Reports, 926
F.2d at 1197. Instead, “the agency must make an ‘express[]’ choice to use a deliberative
document as a source of agency guidance.” Judicial Watch, 847 F.3d at 739 (quoting Sears, 421
U.S. at 161) (emphasis and alteration in original).
No such adoption occurred here. As EXIM explains, the reports do not become the
agency’s official or unofficial position on a particular issue; rather, the ERC uses them “on a
continual basis to analyze and monitor the risks of different loans, debt or loan portfolios, and
other financial transactions that have developed credit issues since they were approved.” Def.
Reply & Opp. at 15. Put differently, rather than “reflect[ing] the [agency’s] policy ‘itself,’” the
reports simply “reflect[] the ideas, theories, or suggestions that ‘go into the making of’ policy.”
Canning v. U.S. Dep’t of State, 346 F. Supp. 3d 1, 28 (D.D.C. 2018) (quoting Elec. Frontier
Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 8 (D.C. Cir. 2014)). Under these circumstances, the
privilege is fully applicable. See id. (explaining that privilege “protect[s] ‘all papers which
reflect the agency’s group thinking in the process of working out its policy’ . . . — even if
10
portions of that ‘thinking’ are ultimately persuasive” to final decisionmakers) (quoting Elec.
Frontier Found., 739 F.3d at 7); Am. Ctr. for Law & Justice v. U.S. Dep’t of Justice, 392 F.
Supp. 3d 100, 107 (D.D.C. 2019) (holding that Attorney General’s “ultimate reliance on the
proposals from her subordinates . . . d[id] not amount to such an express and unequivocal
choice” to use document as source of agency guidance, as required for adoption). Contrary to
Plaintiff’s unsupported suggestions, see Pl. MSJ & Opp. at 21, moreover, the mere fact that the
reports are at times attached to ERC meeting minutes does nothing to alter that conclusion.
The deliberative nature of the reports can be established far more quickly. Their “case by
case” analyses of “each troubled transaction” distill “a range of opinions . . . widely discussed at
various levels of the agency,” Jackson Decl., ¶ 38a, thus plainly “reflect[ing] the give-and-take of
the consultative process.” Judicial Watch, 847 F.3d at 739 (citation omitted); see also Sears, 421
U.S. at 150 (explaining that privilege focuses on documents that compose “part of a process by
which governmental decisions and policies are formulated”) (citation and internal quotation
marks omitted). The Institute essentially makes no argument to the contrary, and the Court’s in
camera review confirms the reports’ deliberative character.
One point bears further comment. Although some of the discussion in the reports may be
characterized as “factual,” the agency properly withheld such material, as well. As this Court
has previously explained:
While it is true that “[p]urely factual material usually cannot be
withheld under Exemption 5,” it can be where “it reflects an
‘exercise of discretion and judgment calls’” and where its exposure
would enable the public to probe an agency’s deliberative processes.
Ancient Coin Collectors Guild v. Dep’t of State, 641 F.3d 504, 513
(D.C. Cir. 2011) (quoting Mapother v. Dep’t of Justice, 3 F.3d 1533,
1539 (D.C. Cir. 1993)). This is because “the privilege serves to
protect the deliberative process itself, not merely documents
containing deliberative material.” Id. at 1537. “[T]he legitimacy of
withholding” thus “does not turn on whether the material is purely
11
factual in nature or whether it is already in the public domain, but
rather on whether the selection or organization of facts is part of an
agency’s deliberative process.” Id. (citing Montrose Chem. Corp.
of Cal. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974)).
Leopold, 89 F. Supp. 3d at 21. Here, the factual material contained in the reports reflects their
drafters’ discretionary judgment regarding the particular information that would be relevant to
the ERC’s decisionmaking process. Especially where such material was “assembled . . . for
purely internal deliberative purposes,” Elec. Privacy Info. Ctr. v. Transp. Sec. Admin., 928 F.
Supp. 2d 156, 168 (D.D.C. 2013), its disclosure would enable onlookers to “prob[e] the
[agency’s] decision-making process itself.” Montrose Chem., 491 F.2d at 68. Since that is
precisely what the privilege safeguards, it falls under the umbrella of Exemption 5.
In addition, the Bank easily carries its burden to show reasonably foreseeable harm from
disclosure of the reports. As its declarant explains, EXIM’s ability to manage complex, evolving
transactions depends on “agency staff be[ing] able to openly both discuss and debate analysis of
the facts, and proposed action plans. Publication of [the reports] would have a direct and
deleterious impact on staff’s ability to openly discuss their views of the facts and their ideas on
plans to address the recovery of the maximum amount of money for the U.S. taxpayer in each
matter.” Jackson Decl., ¶ 38a. “Such chilling of candid advice is exactly what the privilege
seeks to prevent.” Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020);
see also Rosenberg, 442 F. Supp. 3d at 260–61 (finding agency adequately established
foreseeable harm where declarant stated disclosure would inhibit “frank discussions” and impair
efforts to furnish leadership with “the full and necessary understanding” required for effective
decisionmaking). The Bank also notes the distinct risk that various parties to its transactions
might use the report “to find out the thinking underlying EXIM’s positions,” which would
“undermine EXIM’s negotiating position.” Jackson Decl., ¶ 38a. In these circumstances, the
12
harm from disclosure is not only reasonably foreseeable, but indeed manifestly evident. The
reports, accordingly, were properly withheld.
b. Cybersecurity Documents
The Court cannot yet say the same for this next category of withholdings, which
comprises three documents totaling 24 pages: two internal EXIM cybersecurity-related
memoranda and one “cybersecurity dashboard.” Vaughn Index at 1–2; Mulvey Decl. at
201800076F0057–61. This is because the Bank’s submissions — at least as they currently stand
— are insufficient to establish either the predecisional or deliberative character of these
documents.
As an initial matter, the agency’s Vaughn Index omits all mention of one of the two
withheld memoranda. The Court only became privy to its existence by way of in camera review,
finding it tucked within a different record marked for other purposes. See Mulvey Decl. at
201800076F0057–61 (memorandum redacted in full). It need scarcely be said that the Court
cannot affirm Defendant’s withholding of a record it never even acknowledges. Indeed, it is
painful enough for the Court to laboriously pore over all of these in camera records even without
errors. As the D.C. Circuit has emphasized, “There is no excuse for submitting a Vaughn index
that contains errors, even minor ones. We expect agencies to ensure that their submissions in
FOIA cases are absolutely accurate.” Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992),
abrogated on other grounds, Milner v. Dep’t of Navy, 562 U.S. 562 (2011).
As for the remaining two documents, the agency’s treatment of them is far too cursory.
All its declarant says is that they “present analysis by EXIM’s Chief Information Officer to the
Enterprise Risk Committee of issues related to cybersecurity risks EXIM faces.” Jackson Decl.,
¶ 38b. Notably lacking from this ephemeral account, as well as Defendant’s accompanying
13
briefing, is any explanation of the relationship between the CIO and ERC, their respective
responsibilities for formulating cybersecurity policy, and — most critically — the documents’
role in any such agency decisional process. See SafeCard, 926 F.2d at 1204 (explaining that, to
qualify for privilege, agency needed to explain “how decisions . . . are reached; the role that [the
documents] play in such decisions; [and] the manner in which such decisions are memorialized
and explained”). It will not do, moreover, to simply lump the memorandum and “cybersecurity
dashboard” together without differentiation, as even a brief glance at the unredacted documents
suggests that they likely play distinct roles in any (undefined) decisionmaking process. Finally,
although the memorandum suggests that the ERC either accepts or rejects the CIO’s risk-
mitigation recommendations, Defendant never addresses the potential for agency “adoption” of
those proposals, such that some of the document’s contents might lose their predecisional status.
To be sure, it may well be the case that these documents are predecisional and
deliberative, and that their disclosure “would expose [EXIM’s] decisionmaking process in such a
way as to discourage candid discussion within the agency and thereby undermine [its] ability to
perform its functions.” Dudman Communications Corp. v. Dep’t of Air Force, 815 F.2d 1565,
1568 (D.C. Cir. 1987). The Court’s in camera review reveals that they contain sensitive
information — namely, the CIO’s description of numerous cybersecurity risks, his assessment of
their potential impact on the Bank’s activities, and his recommendations for how the agency
might mitigate them while concurrently accounting for operational efficiency. They also survey
trends in digital threats, evaluate the state of EXIM’s defenses, and outline areas for continued
improvement. As such internal analysis and counsel are hallmarks of records to which the
deliberative-process privilege often applies, the Court will provide Defendant another
opportunity to explain “with reasonably specific detail” how the information at hand “logically
14
falls within” Exemption 5. Elec. Frontier Found., 739 F.3d at 7 (quoting Miller v. Casey, 730
F.2d 773, 776 (D.C. Cir. 1984)); see also Citizens for Responsibility & Ethics in Wash. v. U.S.
Dep’t of Justice, 955 F. Supp. 2d 4, 18–19, 24 (D.D.C. 2013) (requiring agency to provide more
robust explanations for withholdings in comparable circumstances). It expects that any renewed
effort to do so will account for the various shortcomings identified here.
c. Senior Staff Reports
Moving right along, the parties next clash over Defendant’s partial withholding of four
internal senior staff reports, along with one duplicate report. See Vaughn Index at 2–3. These
are, as their name suggests, weekly reports compiling updates from various groups and teams
across EXIM’s many divisions for the benefit of the agency’s upper-level staff. See Jackson
Decl., ¶ 38d. The recurring digests — which traverse from legislative and regulatory strategy, to
fraud-risk assessments, to more mundane matters such as upcoming event schedules — contain
“staff analysis and recommendations,” thus enabling senior management “to see both what has
happened in other groups in the agency,” as well as “what is proposed to happen.” Id.As a general matter, Defendant starts off on the right foot, as it is well established that
“[t]he identity of the parties” to the document at issue “is important” when assessing
deliberative-process claims. Coastal States, 617 F.2d at 868. More specifically, “a document
from a subordinate to a superior official is more likely” to be both predecisional and deliberative
than one moving in the opposite direction. Id.; Schlefer v. United States, 702 F.2d 233, 238
(D.C. Cir. 1983); see also Leopold, 89 F. Supp. 3d at 20–21 (finding documents predecisional in
part because they “were written by lower-level employees for use by senior [agency] officials”);
Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 899 (D.C. Cir. 2015) (“A
recommendation to a supervisor on a matter pending before the supervisor is a classic example
15
of a deliberative document.”). The senior staff reports, however, do not fit squarely within this
framework, as the Court’s in camera review reveals that most of the material therein cannot be
characterized as “evaluations” or “analysis . . . prepared for senior-level review and
decisionmaking.” Machado Amadis, 971 F.3d at 370 (citation omitted). At the same time, the
documents are plainly written by subordinates for the benefit of superiors, and select portions
contain internal staff discussion that falls within the confines of the privilege.
For instance, the reports include information of the type withheld in the portfolio risk-
management reports regarding EXIM’s ongoing transactions; these selections reflect the
agency’s continuing monitoring of, decisionmaking process surrounding, and distilled analysis
regarding its many financing ventures. See, e.g., Mulvey Decl. at 201800076F1067; see also
Jackson Decl., ¶ 38d (explaining that “the risks and concerns of publicizing such information
would be the same” as for portfolio risk-management reports). Other sections convey similar
details concerning the Bank’s rolling efforts to monitor, manage, and conduct due diligence on
certain of its existing, pending, and prospective transactions and broader portfolio alike. See,
e.g., Mulvey Decl. at 201800076F1058–59. In addition, the reports relay aspects of the agency’s
continued endeavor to update its credit-risk policy and anti-fraud controls, see, e.g., id. at
201800076F1069–70, 201800076F1080, as well as internal analyses regarding financing risks
triggered by developments in various foreign countries. See, e.g., id. at 201800076F1070.
These discussions are both predecisional and deliberative. Disclosure, moreover, “would cause
agency staff to be much more cautious in staff analysis and proposals regarding a wide array of
issues the agency confronts on a regular basis.” Jackson Decl., ¶ 38d; see also Machado Amadis,
971 F.3d at 371 (foreseeable-harm requirement satisfied where agency stated that disclosure
would “chill future internal discussions”).
16
On the other hand, much material in the reports hardly qualifies as “advisory opinions,
recommendations and deliberations,” nondisclosure of which is necessary to “protect[] the
decision making processes of government agencies.” Sears, 421 U.S. at 150 (citations omitted).
That is, considerable portions — which Defendant never even acknowledges — play no
discernible role in any “continuing process of agency decision-making,” Elec. Privacy Info. Ctr.
v. Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 112 (D.D.C. 2005), let alone “reflect[] the give-
and-take of the consultative process.” Judicial Watch, 847 F.3d at 739 (alteration in original)
(citation omitted). Take, for example, a one-page graphic, redacted in full, containing digital
metrics tracking engagement with EXIM’s website and social-media pages. See Mulvey Decl. at
201800076F1062. It does not appear that these figures were compiled “to aid future policy-
oriented decisions,” Leopold, 89 F. Supp. 3d at 20, and they certainly are not deliberative.
Similarly, consider several fully withheld tables containing high-level data pertaining to small
businesses, as well as single- and multi-buyer transactions. See Mulvey Decl. at
201800076F1072–74. The Government never attempts to establish any link between these
figures and ongoing policy formation; the charts simply relate recent statistical snapshots that
seemingly function as factual updates devoid of any relation to a consultative process. Related
difficulties surround the Bank’s redactions of other selections, too. The following are examples
that fall outside the scope of the deliberative-process privilege:
• a list of recent media outreach and marketing efforts, id. at 201800076F1060;
• registers of confirmed speaking events and upcoming conferences, including those
featuring EXIM personnel, id. at 201800076F1063, 201800076F1075, 201800076F1079;
and
• high-level statistics regarding public financial disclosure reporting forms and unidentified
data-analytics processing, id. at 201800076F1077, 201800076F1082.
17
Instead of discussing (or even alluding to) these parts of the senior staff reports,
Defendant simply approaches the documents from a generic, 30,000-foot view while ever so
briefly narrowing in on a few unrepresentative portions, some of which do clear the Exemption 5
bar. See Jackson Decl., ¶ 38d; Def. MSJ at 15; Def. Reply & Opp. at 17–18. That will not do,
particularly given the wide variety of content contained in the lengthy reports. See Am. Immigr.
Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 240 (D.D.C. 2013) (rejecting
agency’s “vague and categorical” descriptions of documents as insufficient). After all, even if
some fragments of an agency record may be properly withheld, the government must turn over
other portions that do not qualify for an exemption and are reasonably segregable. See Roth v.
U.S. Dep’t of Justice, 642 F.3d 1161, 1167 (D.C. Cir. 2011). It is not this Court’s place,
moreover, to hypothesize forms of upper-level decisionmaking that the reports are intended to
serve, especially when EXIM does not itself identify any. See Jackson Decl., ¶ 38d (stating only
that “primary purpose” of reports is for senior staff “to see both what has happened in other
groups in the agency and what is proposed to happen”). As a reminder, the agency bears the
burden of establishing that the withheld information is both predecisional and deliberative, such
that it comes within the privilege. Access Reports, 926 F.2d at 1194. It has not discharged that
obligation with respect to the excerpts examined here.
In sum, while certain of Defendant’s redactions within the reports were appropriate,
much of the withheld material does not qualify for protection under Exemption 5 and must be
released. Should EXIM desire to continue withholding particular pieces of the reports not
explicitly discussed here — see, e.g., Mulvey Decl. at 201800076F1055–57, 201800076F1075,
201800076F1081–82 — it must more fully justify its reasons for nondisclosure in a
supplemental submission following a renewed review of the documents. Finally, the Court notes
18
that the above-cited pages derive only from the first of five senior status reports at issue in this
litigation. See Vaughn Index at 2–3. Since the reports are substantially similar (and at times
nearly indistinguishable) in form, length, and content, the Court expects that the Government
will have little difficulty applying the determinations herein to the latter four reports, releasing
and withholding material in accordance with this Opinion.
d. Miscellaneous Documents
The Court now turns to the potpourri of additional internal documents Defendant
withheld pursuant to Exemption 5: 1) ERC meeting minutes and agendas, as well as an
associated email; 2) slides from an April 2018 presentation; and 3) one June 2019 email authored
by EXIM’s Assistant General Counsel. It will take each in turn. (For housekeeping purposes,
the Court notes that Plaintiff no longer contests the Bank’s partial redaction of the emails
contained in Rows 34 and 36–39 of its Vaughn Index. See Pl. MSJ & Opp. at 26 n.12.)
i. Meeting Documents
EXIM redacted essentially in full three sets of ERC meeting minutes, two ERC meeting
agendas, and a single-page email listing various documents to be discussed at one such meeting.
See Vaughn Index at 1. There are two problems here, each troubling in its own right. First,
reprising its earlier oversight, Defendant neglects to include in its Vaughn Index one of the three
sets of meeting minutes, as well as one of the two meeting agendas. The Court, once again, only
discovered their existence during its in camera review. See Mulvey Decl. at 201800076F0055–
56, 201800076F0068–69. Such repeated carelessness only undermines the Court’s confidence in
the attention the Government has devoted to its responsibilities here.
The second problem is perhaps worse: notwithstanding its near-complete withholdings,
Defendant in its submissions completely ignores all six records, declining even to mention them
19
in its declaration and briefing. That lapse is all the more glaring where Plaintiff explicitly
flagged the deficiency in its Cross-Motion. See Pl. MSJ & Opp. at 21 n.10, 22. It is especially
puzzling, moreover, where even a brief in camera review suggests that several of the meeting
minutes contain presumably sensitive information of the very type EXIM strove to withhold in
the aforementioned portfolio risk-management reports.
Notwithstanding the Bank’s sloppiness, given the potential sensitivity of the material, the
Court will permit EXIM to renew its submissions if it does in fact seek to defend the
withholdings identified here. It nonetheless cautions Defendant that its current redactions appear
overbroad. It is doubtful, for instance, that dates, attendees, titles, and subject-matter
descriptions in meeting minutes and agendas properly qualify as predecisional and deliberative.
See Ctr. for Pub. Integrity v. U.S. Dep’t of Commerce, 401 F. Supp. 3d 108, 120–21 (D.D.C.
2019) (ordering disclosure of such information); Judicial Watch, Inc. v. U.S. Dep’t of Treasury,
796 F. Supp. 2d 13, 29 (D.D.C. 2011) (similar). The Court expects that the Bank will revisit its
redactions with such guidance in mind, releasing to Plaintiff reasonably segregable information
where appropriate.
ii. Presentation Slides
Next record, similar story. The agency’s Vaughn Index describes these presentation
slides as follows: “Power Point – Intersection of Export Finance and National Defense Strategy”
authored by the “Office of COO” for the “CEO and DOD.” Vaughn Index at 2. That paltry,
relatively unhelpful summation, unfortunately, is all Defendant has to say on the subject. Its
various submissions offer no additional detail on the context of the presentation, its intended
purpose, or its role in any agency (or broader governmental) decisionmaking process. Indeed, its
20
briefing does not even discuss the slideshow. The record before the Court, accordingly, is
simply insufficient to support any conclusion that the redacted content was properly withheld.
Once again, however, given the nature of the information in the slide deck, the Court will
provide the Government another opportunity to more fully explain how these documents come
within Exemption 5 (or Exemption 4, should EXIM wish to pursue it, as several markings on the
redacted slides suggest). Although the Bank has released certain portions of the presentation, id.at 5 n.2, the Court expects that it will focus on the select pages it continues to redact. See
Mulvey Decl. at 201800076F0508–14.
iii. Assistant General Counsel Email
There is no need for Defendant to go back to the drawing board on the final record, an
internal email from an EXIM Assistant General Counsel to the agency’s Chief Risk Officer
focusing on “questions regarding [the] [GAO] report.” Vaughn Index at 4. For context, that
report followed a GAO audit of the Bank’s anti-fraud controls, which will feature prominently
later in this Opinion. The Court’s independent examination confirms that the withheld email
does in fact pertain to the GAO report and, more pertinently, offers details potentially informing
how senior management might “respond to inquiries regarding” such report. See ECF No. 32-1
(Supplemental Declaration of Lennell Jackson), ¶ 5; see also Mulvey Decl. at
201900047F262Interim (email subject line suggesting that article published by Plaintiff in
response to GAO report prompted internal discussion).
It is true that the deliberative-process privilege often “cover[s] . . . discussions about
press coverage of existing agency policies,” as well as “determinations about how to respond to
statements or inquiries made by public interest groups.” Bloche v. Dep’t of Def., 370 F. Supp.
3d 40, 51–52 (D.D.C. 2019). Here, however, while the agency’s submissions establish that the
21
email at hand is predecisional, it cannot satisfy the deliberative prong. The Court’s review
reveals that the message contains no “advisory opinions, recommendations[, or] deliberations”
regarding the agency process at issue. Sears, 421 U.S. at 150 (citation omitted); see also Public
Citizen, Inc. v. Off. of Mgmt. & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010) (“Only those
portions of a predecisional document that reflect the give and take of the deliberative process
may be withheld.”). The redacted material features nothing “that can even be construed as a
personal opinion of an agency official.” Cause of Action Inst. v. U.S. Dep’t of Justice, 330 F.
Supp. 3d 336, 353 (D.D.C. 2018). Indeed, the email “offers no commentary whatsoever,” Public
Citizen, 598 F.3d at 876, instead simply providing a several-sentence recounting of factual
information from an already public report. Neither would disclosure reveal “the deliberative
process itself” so as to “expose an agency’s policy deliberations to unwarranted scrutiny.”
Mapother, 3 F.3d at 1537–38. As this Court has previously explained in a similar situation, the
email does not “distill[] voluminous records into factual summaries for higher-ups,” “reveal the
outcome of the deliberative process,” or offer “insight into the agency’s position or anything else
that ‘clearly involves the formulation or exercise of . . . policy-oriented judgment or the process
by which policy is formulated.’” Cause of Action, 330 F. Supp. 3d at 353 (cleaned up) (quoting
Mapother, 3 F.3d at 1539). In these circumstances, the deliberative-process privilege offers no
shelter.
EXIM alternatively seeks to withhold the email under the attorney-client privilege,
which, the attentive reader will recall, provides an independent ground on which a record may be
reserved under Exemption 5. Am. Immigr. Council, 905 F. Supp. 2d at 216. This effort
encounters its own problems.
22
This privilege extends to, among other things, communications from attorneys to their
clients containing confidential information supplied by the client. See Tax Analysts v. IRS, 117
F.3d 607, 618 (D.C. Cir. 1997). As relevant here, however, the privilege “protects only those
disclosures necessary to obtain informed legal advice.” Coastal States, 617 F.2d at 862–63
(quoting Fisher v. United States, 425 U.S. 391, 403 (1976)); see also In re Kellogg Brown &
Root, Inc., 756 F.3d 754, 759–60 (D.C. Cir. 2014) (explaining that obtaining or providing legal
advice must be a “primary purpose of the communication”). That critical element is lacking
when it comes to the email in question. Nowhere does the message — which, as explained
above, accomplishes the ministerial task of tracking down and relaying information from a
public report — purport to impart, or respond to a request for, legal advice. Nor does the agency
ever so contend, despite its burden to prove this element. See Cause of Action, 330 F. Supp. 3d
at 348. The Court could go on — for instance, Defendant never establishes, as similarly
required, that the underlying information was kept confidential. See Am. Immigr. Council, 950
F. Supp. 2d at 243. This record must see the light of day.
2. Communications Regarding Political Nominees
The next category of Exemption 5 withholdings is relatively narrow in scope, comprising
just a single record spanning ten pages. See Vaughn Index at 2; Mulvey Decl. at
201800076F0358–67. In reality, that single record is actually five distinct two-page documents,
each a different “strategic plan[]” aimed at securing a particular individual’s Senate confirmation
to a position at EXIM. See Mulvey Decl. at 201800076F0357 (email attaching five reports and
naming nominees). Having authored these “planning documents,” Bank officials passed them
along to the Executive Office of the President (EOP), intending for them to serve as a source of
23
guidance for administration officials throughout the relevant confirmation processes. See
Jackson Decl., ¶ 38c; Def. MSJ at 14.
Plaintiff contests the agency’s complete withholding of these ten pages. In so doing, it
makes two arguments: 1) the documents are not “inter-agency or intra-agency memorandums or
letters,” as required to qualify for Exemption 5 protection in the first place; and 2) even if they
were, they do not satisfy the elements of deliberative process. Disagreeing on both counts, the
Court finds that EXIM properly withheld the strategic plans.
a. Inter- or Intra-Agency Record
Regardless of whether a document is predecisional and deliberative, it may not be
withheld under Exemption 5 unless it is an “inter-agency or intra-agency” record. See 5 U.S.C.
§ 552(b)(5); Klamath Water Users, 532 U.S. at 9. Because that threshold requirement has
“independent vitality,” Klamath Water Users, 532 U.S. at 12, the Court begins there. Binding
D.C. Circuit precedent confirms that the agency clears that bar.
FOIA, as a reminder, requires an “agency” to make “agency records” available upon
request. See 5 U.S.C. § 552(a)(3). Not all government entities, however, are “agencies” subject
to FOIA. As relevant here, “Congress did not intend the word ‘agency’ to include the President,
his ‘immediate personal staff[,] or units in the Executive Office whose sole function is to advise
and assist the President.’” Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 216 (D.C. Cir.
2013) (alteration in original) (quoting Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 156 (1980)). Although Defendant does not provide much detail regarding the
identities of the recipients of the strategic plans, it explains that the plans were transmitted to a
unit within the Executive Office “whose sole function is to advise and assist the President.” Def.
Reply & Opp. at 6–7. The Court therefore assumes, as Plaintiff also contends, that EXIM sent
24
the records to an entity that does not qualify as an agency under FOIA — namely, a unit of
advisors to the President.
The game is not up, however. The D.C. Circuit has squarely held that documents
exchanged between an agency and a non-agency entity within the Executive Branch may still
qualify for protection under Exemption 5. In Judicial Watch, Inc. v. Department of Energy
(Judicial Watch I), 412 F.3d 125 (D.C. Cir. 2005), the Court of Appeals considered certain
agency communications with a non-agency government entity — there, the National Energy
Policy Development Group, a body established for the sole purpose of advising the President.
Id. at 129–31. It concluded, over the requester’s objection, that those records were “inter-agency
or intra-agency” communications, even though NEPDG and the President were not “agencies”
within the meaning of FOIA, and even though the records reflected the deliberations of NEPDG.
Id. As the Court made clear, “Neither Exemption 5 nor the cases interpreting it distinguish
between the decision-making activities of an ‘agency’ subject to the FOIA and those of the
President and his staff, who are not subject to the FOIA.” Id. at 129. “[W]hat matters,” instead,
“is whether a document will expose the pre-decisional and deliberative processes of the
Executive Branch.” Id. at 131.
Drawing from this precedent, numerous courts in this district have explained that
Exemption 5’s “threshold requirement is satisfied for communications exchanged between
agencies and the Office of the President, even though that office is not an agency for the
purposes of FOIA.” Judicial Watch, Inc. v. Dep’t of State, 306 F. Supp. 3d 97, 109 (D.D.C.
2018) (quoting Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d. 1, 10
(D.D.C. 2014)). This case is no different. As in Judicial Watch I, the documents produced here
by EXIM, an agency subject to FOIA, were exchanged with a unit of the President’s staff not
25
covered by FOIA. So long as the records would “expose the pre-decisional and deliberative
processes of the Executive Branch,” therefore, they are protected from disclosure under
Exemption 5. See Judicial Watch I, 412 F.3d at 131; see also EPA v. Mink, 410 U.S. 73, 85
(1973). That result, it bears noting, also tracks a decision from just last month — involving the
very same Plaintiff as here — in which a court found that a report prepared by an agency for the
President and his close advisors satisfied Exemption 5’s threshold demand. See Cause of Action
Inst. v. U.S. Dep’t of Commerce, No. 19-778, 2021 WL 148386, at *5 (D.D.C. Jan. 14, 2021);
see also Buzzfeed, Inc. v. FBI, No. 18-2567, 2020 WL 2219246, at *5–7 (D.D.C. May 7, 2020)
(holding that documents created by agency and sent to White House Counsel’s Office, a non-
agency government entity, fulfilled Exemption 5’s initial requirement).
The Institute acknowledges this binding caselaw, but urges the Court to disregard such
authority, arguing that “[t]he prefixes ‘inter-’ and ‘intra-’ . . . limit” the scope of Exemption 5 “to
‘memorandums or letters’ exchanged within or among entities subject to the FOIA.” Pl. MSJ &
Opp. at 16–17 (emphasis removed). Plaintiff does not, however, explain how this district court
may properly ignore Circuit precedent. Indeed, Judicial Watch I itself rejected the view that its
interpretation was “inconsistent with [Exemption 5’s] textual limitation to ‘intra-agency’ or
‘inter-agency’ communications,” as the plaintiffs in the case suggested. See 412 F.3d at 130; see
also Buzzfeed, 2020 WL 2219246, at *5–6 (rejecting similar argument from plaintiffs); Cause of
Action, 2021 WL 148386, at *5 (same). No more need be said here.
b. Application of Privilege
As to the remaining question of whether the records at hand are predecisional and
deliberative, EXIM’s submissions, coupled with the Court’s in camera review, readily answer in
the affirmative. The agency’s declarant explains that the “planning documents . . . present
26
proposals back and forth between EXIM officials and the Executive Office of the President of
the United States discussing plans how to get high-level political nominees confirmed by the
U.S. Senate.” Jackson Decl., ¶ 38c. Defendant has thus adequately “identif[ied] the
decisionmaking process to which [the documents] contributed” — namely, the Executive
Branch’s “study of how to shepherd” the President’s nominees through to confirmation. Access
Reports, 926 F.2d at 1196. The memoranda are also clearly deliberative inasmuch as they reflect
the Executive Branch’s priorities surrounding the nominees and evolving, potential strategies for
how each might attain confirmation. By their very nature, these “plans” and “proposals,”
Jackson Decl., ¶ 38c, “reflect[] the give-and-take” of an Executive Branch “consultative
process.” Judicial Watch, 847 F.3d at 739 (alteration in original) (citation omitted).
Plaintiff’s sole response largely retreads ground the Court has already covered.
According to the Institute, documents withheld under this privilege must further agency
decisionmaking, not that of, say, the President or his immediate advisory staff. See Pl. MSJ &
Opp. at 23 (arguing that fact that “the relevant decisionmaker at hand is the President, not [EXIM
,] . . . is fatal to any privilege claim”) (emphasis removed). As explained above, however, the
D.C. Circuit has reversed a district court for embracing precisely that misguided proposition —
i.e., that Exemption 5 does not protect documents that further only the decisionmaking processes
of an Executive Branch entity not subject to FOIA. See Judicial Watch I, 412 F.3d at 129. The
records that the Court of Appeals found properly withheld in Judicial Watch I, like those here,
“pertain[ed] not to [the agencies’] own deliberations but to those of the” non-agency unit
established to advise the President. Id. at 127–28; see also Shurtleff v. EPA, 991 F. Supp. 2d 1,
14–15 (D.D.C. 2013) (determining that deliberative-process privilege protected documents
reflecting decisionmaking process not of individual agency, but rather of Executive Branch at
27
large). That Exemption 5 extends to such records is a feature, not a bug, of FOIA. Much like the
D.C. Circuit, this Court finds it “inconceivable” that “Congress intended Exemption 5 to protect
the decision-making processes of the Executive Branch when the decision is to be made by
‘agency’ officials subject to oversight by the President and not when the decision is to be made
by the President himself and those same agency officials are acting in aid of his decision-making
processes.” Judicial Watch I, 412 F.3d at 130.
Finally, EXIM has discharged its duty to establish reasonably foreseeable harm from the
release of the planning documents. Disclosure of an aspect of the Executive Branch’s strategic
playbook for helping its nominees attain confirmation would, naturally, “significant[ly] chill”
any future “written discussion of such plans.” Jackson Decl., ¶ 38c. Release would also
undercut the very ends the memoranda were drafted to achieve. As the agency’s declarant
explains, certain individuals who “oppose all Senate-confirmed nominees for EXIM positions”
could draw upon the plans to “strengthen their own strategies for opposing . . . nominees,” a
result that “would only add to [EXIM’s] difficulties in getting nominees approved.” Id. The
planning documents, accordingly, were properly withheld.
3. Records Surrounding GAO Audit
The Court’s Exemption 5 journey concludes with yet another distinct set of records:
EXIM’s various productions and responses to GAO in connection with its aforementioned audit
of the Bank’s anti-fraud controls. See Vaughn Index at 3–4 (Rows 32, 33, and 41).
Notwithstanding Defendant’s suggestion that these materials were only redacted in part, id., they
appear to have been reserved in full — and, according to Plaintiff, improperly so. In keeping
with the general result of this Opinion, the Court renders a split decision. Finding that the
records are best analyzed as five different sets of documents, it concludes that EXIM properly
28
withheld one and must release one. As to the remaining three, the Court once again holds — as
will come as little surprise to the diligent reader who has toiled along thus far — that the
Government has not furnished a record adequate to support a de novo review of its withholdings.
Plaintiff begins by mounting an argument that rings familiar: because GAO is concededly
not an “agency” subject to FOIA, see Jackson Decl., ¶ 39a, documents exchanged between
EXIM and GAO cannot qualify as inter- or intra-agency records under Exemption 5. See Pl.
MSJ & Opp. at 16. As GAO is a unit within the Legislative Branch that exists to provide
services for Congress, however, the operable legal framework does not wholly track that
pertaining to documents funneled between FOIA-subject agencies and FOIA-exempt units within
the Executive Branch, as discussed above. Fortunately, the parties essentially agree as to the
relevant legal test, which the Court will now lay out.
In Dow Jones & Co., Inc. v. Department of Justice, 917 F.2d 571 (D.C. Cir. 1990), the
D.C. Circuit considered whether a letter sent by an Executive Branch agency covered by FOIA
to Congress was properly withheld under Exemption 5. Id. at 572, 574. It held not, explaining
that the statutory text “inter-agency or intra-agency” records “will not stretch to cover this
situation, because Congress is simply not an agency.” Id. at 574. The court acknowledged that
such external communications from a FOIA-subject agency may qualify for protection when
they “are part and parcel of the agency’s deliberative process.” Id. at 575. But because the letter
in question was drafted for the purpose of aiding the “deliberations of a non-agency” — i.e.,
Congress — it could not qualify as either an intra- or inter-agency record. Id. at 572, 575.
The Circuit clarified the scope of this holding a decade later in Rockwell International
Corp. v. U.S. Department of Justice, 235 F.3d 598 (D.C. Cir. 2001), when it considered an
agency’s Exemption 5 withholding of several documents that the agency had, once more, sent to
29
Congress. Id. at 603–04. This time, however, the court reached the opposite outcome. Even
though the files “were sent to assist” a congressional subcommittee “in its deliberations,” they
enjoyed protection under Exemption 5. Id. at 604. That was because the documents had been
“created [earlier] as part of the [agency’s] deliberative process,” thus making them “precisely the
kind of inter- and intra-agency memoranda Exemption 5 protects.” Id. The agency did not
“waive[] Exemption 5 protection” for documents that were drafted to serve the agency’s
decisionmaking process, as opposed to that of Congress, simply by later sending them to the
legislature. Id. at 603–04.
In sum, documents exchanged “between an agency and Congress . . . receive protection
as intra-agency memoranda if they were ‘part and parcel of the agency’s deliberative process,’”
but not if they were “created specifically to assist” or for the “sole purpose of assisting”
Congress “with its deliberations.” Id. at 604 (quoting Dow Jones, 917 F.2d at 575); see also Pl.
MSJ & Opp. at 19–20 (largely reciting this test); Def. Reply & Opp. at 14 (similar); Elec.
Privacy Info. Ctr., 928 F. Supp. 2d at 164–65 (finding no Exemption 5 protection for document
“prepared to assist with Congressional deliberations rather than agency deliberations”).
The relevant framework thus expounded, the Court now applies it, which, as usual, is
more easily said than done. Defendant, unfortunately, has substantially contributed to this
difficulty. Although the withheld documents from EXIM’s production to GAO vary in type and
subject matter, its declarant simply lumps them together, describing them as “all pertain[ing] to
different frauds that had been committed against the agency over a period of years,” and
“discuss[ing] the particulars of the fraud, as well as the agency’s manner of addressing the
fraud.” Jackson Decl., ¶ 39a. Even the briefest in camera review reveals that this description is
plainly overbroad and — at least with respect to some of the withheld documents — seemingly
30
inaccurate, as their content has nothing to do with “fraud[] that had been committed against the
agency.” Id. Without at minimum a general description of each of the reserved documents,
including how and why it was created, a reviewing court will often be hard pressed to determine
whether it was aimed at serving “‘the agency’s deliberative process,’” rather than “created
specifically to assist Congress.” Rockwell, 235 F.3d at 604 (quoting Dow Jones, 917 F.2d at
575).
Indeed, for three of these five sets of documents, the present record is inadequate for the
Court to pronounce on the propriety of the agency’s withholding, even assuming they satisfy
Exemption 5’s threshold requirement. One appears to be a 20-page “risk register” identifying
EXIM’s top perceived risks for the 2018 fiscal year. See Mulvey Decl. at
201900047F032Interim–52Interim. The vast majority of this document, however, plainly has
nothing to do with “fraud[] . . . committed against the agency,” Jackson Decl., ¶ 39a, and the
Bank never explains what role it plays in its deliberative process such that it could be properly
withheld under Exemption 5. Another is an “Enterprise Risk Assessment” report produced by an
external consulting firm for EXIM’s 2016 fiscal year. See Mulvey Decl. at
201900047F127Interim–54Interim. This document may well ultimately fall within the privilege,
but Defendant has neither acknowledged it nor accurately summarized its content, let alone
established its predecisional and deliberative nature.
The Court will also require further development on a third set of documents, see Mulvey
Decl. at 201900047F053Interim–79Interim, 201900047F107Interim–22Interim, but for different
reasons. Although these records (at last) do revolve around fraudulent conduct committed
against EXIM, the Court’s in camera review makes clear that they were created in response to
questions submitted by GAO as it conducted its audit — in other words, “specifically to assist
31
Congress,” such that they generally would not fulfill Exemption 5’s initial “intra-agency”
condition. Rockwell, 235 F.3d at 604. In response, Defendant fleetingly suggests in its briefing
— but not its declaration — that GAO’s audit was “just one more step in the process by which
EXIM Bank makes a decision/policy on how to respond to fraud.” Def. Reply & Opp. at 14.
Notwithstanding the fact that the documents were created for Congress, then, Defendant seems
to contend that they were nonetheless “part and parcel of the agency’s deliberative process”
because the audit to which they contributed was in turn a component of a broader agency review
of its anti-fraud controls. Dow Jones, 917 F.2d at 575 (emphasis removed). The Court has its
doubts as to the viability of this tack. In light of its disposition on other issues, however, it will
provide the Bank another opportunity to more precisely explain how the GAO audit served its
own decisionmaking process, as well as how the documents qualify as both predecisional and
deliberative in any event.
No delay, by contrast, attends the final two withholdings. One is a 2007 internal
memorandum from EXIM’s Office of General Counsel regarding the agency’s preliminary
investigation into a specific set of fraudulent transactions. See Mulvey Decl. at
201900047F080Interim–106Interim. Produced for the express purpose of enabling the Bank to
make decisions regarding credit, debarment, and criminal referrals, the document maintains a
deliberative character that follows immediately from its predecisional nature, as it evinces an
“inten[t] to facilitate or assist development of the agency’s final position on the relevant
issue[s].” Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014). The memo,
consequently, was plainly “part and parcel of the agency’s deliberative process,” and it did not
forfeit its protection upon EXIM’s mere submission to Congress a decade after its creation.
Rockwell, 235 F.3d at 603–04 (quoting Dow Jones, 917 F.2d at 575); cf. Buzzfeed, 2020 WL
322219246 at *9–11 (holding that privileged agency document did not forfeit Exemption 5
protection when agency shared it with Congress). While hefty chunks of information within the
memo may be characterized as factual, its author’s “selection of the facts thought to be relevant”
to the decision at hand constitutes a core part of the agency’s deliberative process. Mapother, 3
F.3d at 1539; see also Reinhard v. Dep’t of Homeland Sec., No. 18-1449, 2019 WL 3037827, at
*7 (D.D.C. July 11, 2019) (“When final decisionmakers rely on others to condense a mass of
available information into a summary or set of factual findings that the staff thinks important to
the final decisionmaker, the deliberative-process privilege applies.”). Disclosure of this initial
investigatory document, moreover, would expose aspects of the Bank’s anti-fraud strategies to
the public eye, thus “deterr[ing] [agency staff] from frankly assessing individual fraud matters[]
and openly proposing plans to address such fraud.” Jackson Decl., ¶ 39a. This document was
properly withheld.
The story is different for the final record, which spans but a single page. Defendant says
nothing about it, other than the fact that it contains an “EXIM response to GAO questions.”
Vaughn Index at 4 (Row 41). In addition to thus appearing to flunk Exemption 5’s threshold
requirement, see Elec. Privacy Info. Ctr., 928 F. Supp. 2d at 165, in no fashion may the
document be deemed deliberative. It simply reports the dollar amount of a particular restitution
award identified from a court order, in response to a GAO inquiry. Because withholding this
record seemingly does nothing to “protect[]” EXIM’s “decision making processes,” Sears, 421
U.S. at 150 (citations omitted), and because Defendant has pointed to no foreseeable harm from
its disclosure, the agency must release it to Plaintiff.
Before bringing this section to a close, the Court briefly addresses a perplexing assertion
made in passing by the Bank’s declarant that “GAO requests and inquiries are the property of
33
GAO and not subject to FOIA.” Jackson Decl., ¶ 39a. To the extent this position is intended to
cover the reserved documents themselves, it is wholly inconsistent with Defendant’s treatment of
them throughout this litigation. EXIM, after all, explicitly withheld the documents pursuant to
specific FOIA exemptions, see Vaughn Index at 3–4, thus treating them as agency records. Its
Motion followed the same path, see Def. MSJ at 15–16, never once suggesting that they were
“not subject to FOIA” altogether. See Jackson Decl., ¶ 39a. To the extent the declarant’s
statement is instead meant to embrace the specific “requests and inquiries” GAO made to EXIM,
id., as opposed to the latter’s subsequent production, the relevance to the present litigation is
unclear; such “requests and inquiries” are not presently at issue, and Defendant never identifies
any information as property of GAO not subject to FOIA.
B. Exemption 6
With Exemption 5 (finally) out of the way, the Court now turns to a point of contention
that is comparatively minor: whether EXIM properly withheld the email addresses of a handful
of personnel from the Executive Office of the President under Exemption 6. See Pl. MSJ & Opp.
at 12–15 (limiting challenge to redactions of email addresses); Vaughn Index at 2–3 (relevant
records at Rows 13, 28–30). The Court confesses that Plaintiff’s fixation on this issue is
puzzling, for although the EOP staffers’ email addresses are redacted from the responsive
records, the Bank fully disclosed their names. The instant contretemps, therefore, is limited to a
grand total of four withheld email addresses across five pages where the identities of all senders
and recipients are known. Heeding the parties’ summons to duty, the Court will nonetheless
plow ahead and determine whether redaction was proper.
It bears noting, at the outset, that EXIM claims that the email addresses in question are
both protected by Exemption 6 and not subject to FOIA at all on account of their being the
34
property of the EOP. See Jackson Decl., ¶ 46 (explaining that Government withheld “email
addresses on grounds that such information belongs to the EOP, as well as on privacy grounds
under Exemption 6”). The agency never explains how this information could be at once outside
the scope of FOIA and also subject to withholding under Exemption 6. To the extent it intends
to make such alternative arguments — unusual in this context — it never so clarifies. No matter,
as even assuming the email addresses are properly subject to FOIA, Exemption 6 provides a
sufficient basis for the Bank’s nondisclosure.
That exemption protects “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. §
552(b)(6). There is no dispute that the withheld email addresses qualify as “similar files” under
the statute. Id.; see also U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602 (1982)
(explaining that information that “applies to a particular individual” qualifies as “similar files”
under Exemption 6); Gov’t Accountability Project v. U.S. Dep’t of State, 699 F. Supp. 2d 97,
106 (D.D.C. 2010) (“Because . . . email addresses can be identified as applying to particular
individuals, they qualify as ‘similar files’ under Exemption 6 . . . .”) (citation omitted).
With the first hurdle thus easily cleared, the Court turns to the parties’ true point of
disagreement: whether disclosure of the email addresses “would constitute a clearly unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(6). That inquiry, in turn, involves a “balancing
of interests between the protection of an individual’s private affairs from unnecessary public
scrutiny, and the preservation of the public’s right to governmental information.” U.S. Dep’t of
Def. Dep’t of Mil. Affs. v. FLRA, 964 F.2d 26, 29 (D.C. Cir. 1992) (quoting Rose, 425 U.S. at
372); see also Beck v. Dep’t of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (requiring courts to
“balance the privacy interests that would be compromised by disclosure against the public
35
interest in release of the requested information”) (quoting Davis v. Dep’t of Justice, 968 F.2d
1276, 1281 (D.C. Cir. 1992)).
The Court begins with the familiar inquiry into “whether disclosure of the files would
compromise a substantial, as opposed to de minimis, privacy interest,” for “if no significant
privacy interest is implicated FOIA demands disclosure.” Multi Ag Media LLC v. Dep’t of
Agriculture, 515 F.3d 1224, 1229 (D.C. Cir. 2008) (cleaned up). “A substantial privacy interest
is anything greater than a de minimis privacy interest.” Id. at 1229–30. “Finding a substantial
privacy interest does not conclude the inquiry; it only moves it along to the point where [the
Court] can address the question whether the public interest in disclosure outweighs the individual
privacy concerns.” Id. at 1230 (citation and internal quotation marks omitted).
Here, the Court agrees with EXIM that the identified EOP personnel enjoy a “substantial
privacy interest” in their email addresses. Id. According to the Bank, disclosure of the withheld
contact information could cause those individuals to experience “harassment, unwanted
attention, and unsolicited communications.” Jackson Decl., ¶ 44. Courts in this district have
looked favorably upon such concerns, concluding on numerous occasions for reasons similar to
those identified here that government employees — and, in one case, EOP staff — have a
substantial privacy interest in their email addresses. See, e.g., Shurtleff, 991 F. Supp. 2d at 18–
19 (affirming withholding of work email addresses of EOP staff, given their “significant personal
interest in preventing the burden of unsolicited emails and harassment”) (citation omitted); Hall
& Assocs. v. EPA, No. 19-1095, 2020 WL 4673411, at *5 (D.D.C. Aug. 12, 2020) (explaining
that “[c]ourts have . . . upheld the withholding of email addresses used for work purposes where
they are not publicly available,” and recognizing the “interest individuals have in keeping their
email addresses private and controlling the dissemination of that information”); Ctr. for Pub.
36
Integrity v. U.S. Dep’t of Energy, No. 18-1173, 2020 WL 1695083, at *8 (D.D.C. Apr. 6, 2020)
(similar). These decisions, which the Court finds persuasive, accord with the broader principle
that “[t]he privacy interest of civilian federal employees includes the right to control information
related to themselves and to avoid disclosures that ‘could conceivably subject them to annoyance
or harassment in either their official or private lives.’” Elec. Privacy Info. Ctr., 384 F. Supp. 2d
at 116 (quoting Lesar v. U.S. Dep’t of Justice, 636 F.2d 472, 487 (D.C. Cir. 1980)).
Instead of acknowledging this line of adverse caselaw, Plaintiff primarily argues that
EXIM has not established with the requisite specificity why disclosure of the withheld email
addresses would threaten any privacy interest in these particular circumstances. See MSJ &
Opp. at 14. It is no doubt true, as the Institute points out, that “the disclosure of names and
contact information is not inherently and always a significant threat to . . . privacy.” Id. (cleaned
up) (quoting Sai v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 262 (D.D.C. 2018)). Here,
however, the “threat to privacy” is “real rather than speculative.” Smith v. Dep’t of Lab., 798 F.
Supp. 2d 274, 284 (D.D.C. 2011). For one, the withheld addresses are retained by high-ranking
executive-branch staffers, not lower-level agency line employees far removed from any
substantive policy role or the key events at issue. For another, the Institute has indicated that it
will “make the results of [its FOIA] request available to a reasonably broad public audience
through various media,” thus raising the potential for broad dissemination of the email addresses
in question. See ECF No. 1-1 (9/20/18 FOIA Request) at 2; see also Elec. Privacy Info. Ctr., 384
F. Supp. 2d at 117 (noting, as evidence of privacy interest, possibility that plaintiff would publish
released documents online and that readers would contact named employees). These
considerations, moreover, readily discharge the Bank’s obligation to establish reasonably
37
foreseeable harm from disclosure of the reserved email addresses. See Reporters Comm. for
Freedom of Press v. FBI, No. 15-1392, 2020 WL 1324397, at *9 (D.D.C. Mar. 20, 2020).
In these circumstances, the Court has little difficulty concluding that Defendant has
established a “substantial privacy interest” in the withheld information. Prison Legal News v.
Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015). That is so even if the agency’s somewhat
cursory declaration could have offered more in support of that interest, and even if the threat
posed by disclosure is less evident than in other cases where an agency successfully withheld
government email addresses. The standard to determine whether a privacy interest is
“substantial,” after all, “is not very demanding.” Multi Ag Media, 515 F.3d at 1230. EXIM has
cleared that relatively low bar here; while the privacy interest at hand may well be “rather
modest,” it is nonetheless “more than de minimis,” and that is all that is required. Hall &
Assocs., 2020 WL 4673411, at *5.
Looking to the other side of the scale, the “only relevant public interest in disclosure to
be weighed in this balance is the extent to which disclosure would serve the core purpose of the
FOIA, which is contributing significantly to public understanding of the operations or activities
of the government.” Dep’t of Def. v. FLRA, 510 U.S. 487, 495 (1994) (cleaned up). The task is
simple, since Plaintiff has identified no public interest whatsoever in the withheld email
addresses. Critically, as explained above, EXIM has already released the names of the particular
EOP staffers involved in the communications at issue; it has only withheld, and the Institute only
seeks, their email addresses. It remains a mystery to the Court how disclosure of the employees’
email addresses — when their identities are already out in the open — would enhance “public
understanding of the operations or activities of the government,” id., or otherwise shed light on
EXIM’s workings with EOP. See Shurtleff, 991 F. Supp. 2d at 18–19 (determining that privacy
38
interest in official EOP email addresses outweighed public interest in disclosure because records
already revealed identities of individuals whose email addresses were redacted).
In sum, the identified privacy interest — regardless of its precise magnitude — prevails
over a non-existent public interest in disclosure. In other words, “something, even a modest
privacy interest, outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps. v. Horner,
879 F.2d 873, 879 (D.C. Cir. 1989); see also U.S. Dep’t of Def., 510 U.S. at 500 (explaining that
“a very slight privacy interest would suffice to outweigh” the “virtually nonexistent . . . public
interest in disclosure”). Disclosure of the withheld email addresses, accordingly, “would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6).
C. Record Not Subject to FOIA
The parties’ final clash centers around a one-page document, a seemingly innocuous
email chain setting up a call between an EXIM employee and an official within the Executive
Office of the President. See Mulvey Decl. at 201800076F1729–30. While the Bank produced
the individual messages from its own staffer, it redacted three others from the EOP
correspondent as property of the EOP “not subject to FOIA.” Jackson Decl., ¶ 46; Def. MSJ at
20. Plaintiff challenges those withholdings.
The Court, however, finds that it cannot presently resolve this quarrel, as both parties’
submissions leave certain critical elements wanting. For all of Defendant’s insistence that the
relevant portions of the email chain are not subject to FOIA, it insufficiently identifies the source
of such material while overstating the entities not covered by the statute’s broad disclosure
mandate. The Government at times suggests, for instance, that “all individuals employed in the
Executive Office of the President and its supporting offices” are not subject to FOIA. See Def.
MSJ at 20; see also Jackson Decl., ¶ 46 (“The Executive Office of the President is not subject to
39
FOIA.”). On the contrary, FOIA makes clear that the EOP is within its reach. See 5 U.S.C.
§ 552(f)(1). It is only the President’s “immediate personal staff,” as well as Executive Office
units “whose sole function is to advise and assist the President,” that are excluded from the
statute’s coverage. Judicial Watch, 726 F.3d at 216 (quoting Kissinger, 445 U.S. at 156).
Defendant has made no effort to establish that the sender of the redacted emails falls into that
latter group. See Def. MSJ at 20 (stating only that it “withheld information from the Executive
Office of the President”). To be sure, it may well be the case that he does, but it is not this
Court’s place to so speculate where the Government offers no information about him or his
precise unit. While the Court was willing to assume earlier that distinct officials worked in the
sole capacity of advising and assisting the President where it made no difference to the ultimate
outcome, see supra at 24, here the Bank’s withholdings rest on its ability to demonstrate those
very circumstances.
In addition, the parties exchange several pages of argument as to whether Defendant
properly segregated or improperly segmented the record at issue. See Pl. MSJ & Opp. at 5–9;
Def. Reply & Opp. at 22–23; ECF No. 33 (Pl. Reply) at 2–4. Yet, for all their discussion, they
never acknowledge the D.C. Circuit’s instruction that agencies may redact information not
subject to FOIA from documents that otherwise qualify as agency records. See United We Stand
Am., Inc. v. IRS, 359 F.3d 595, 603–04 (D.C. Cir. 2004) (rejecting argument that documents
cannot be “part-agency records”); Judicial Watch, 726 F.3d at 233 (summarizing United We
Stand as “holding that portions of agency records may be redacted as non-agency records”).
That guidance seemingly renders irrelevant, as well as inapt, any debate over whether EXIM
improperly “divide[d]” a single agency record “into multiple so-called ‘records.’” Pl. MSJ &
Opp. at 6.
40
That is all the Court need say for now. To the extent the Government desires to continue
withholding — and Plaintiff wishes to continue pursuing — isolated snippets from what EXIM’s
production has already revealed to be a simple email conversation aimed at scheduling a phone
call, the Court expects the parties’ renewed submissions to account for the above.
***
The Court concludes with a brief word on segregability, along with Plaintiff’s claim that
Defendant has failed to release all non-exempt, reasonably segregable information from the
withheld records. See Pl. MSJ & Opp. at 34–35 (citing 5 U.S.C. § 552(b)). All EXIM offers on
the matter is its conclusory assertion that it “has conducted a line-by-line review of all of the
foregoing documents and has segregated and released all reasonably segregable, non-exempt
information.” Jackson Decl., ¶ 47. That alone will not discharge the agency’s “obligation to
carry its evidentiary burden and fully explain its decisions on segregability.” Am. Immigr.
Council, 950 F. Supp. 2d at 248; see also Mead Data, 566 F.2d at 261 (“[U]nless the
segregability provision of the FOIA is to be nothing more than a precatory precept, agencies
must be required to provide the reasons behind their conclusions in order that they may be
challenged by FOIA plaintiffs and reviewed by the courts.”). Indeed, Plaintiff has highlighted
several red flags undermining the “presumption” that Defendant has disclosed all reasonably
segregable material, see Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013), including the basic
reality that a number of the records the Government claims were only redacted in part appear to
have been redacted in full. See, e.g., Vaughn Index at 1–2 (Rows 4, 7, 9, 10, 11).
The Court’s own in camera review, moreover, causes it to further question whether the
Bank has adequately complied with FOIA’s segregability mandate. As Defendant conducts its
renewed review of the documents in accordance with this Opinion, the Court trusts that it will
41
carefully determine whether any reasonably segregable, non-exempt information can be released
— including, for example, document headers, title pages, straightforward timelines and
chronologies, and, most crucially and most broadly, other non-deliberative text that does not
qualify for protection under Exemption 5.
IV. Conclusion
For the foregoing reasons, the Court will grant in part and deny in part the Motions for
Summary Judgment. A separate Order so stating shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 23, 2021
42