Sierra Club v. U.S. Fish and Wildlife Service

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SIERRA CLUB,
Plaintiff,
v. Civil Action No. 19-2315 (JEB)
UNITED STATES FISH AND WILDLIFE
SERVICE,
Defendant.
MEMORANDUM OPINION
In early 2018, Plaintiff Sierra Club learned that Defendant United States Fish and
Wildlife Service had initiated a review of the Florida Key deer’s place on the endangered-species
list. Hoping to uncover the agency’s reasons for this review and any information it relied upon,
Sierra Club filed a Freedom of Information Act request. Frustrated with the agency’s delayed
response, it then filed this suit. In dueling Motions for Summary Judgment, the parties dispute
only FWS’s invocation of FOIA Exemption 5’s deliberative-process privilege to shield certain
documents. Although the Court planned to fully resolve this case, it was stymied by the
agency’s cursory briefing on several seminal points. As a result, the Court delivers a split
decision: it will order the release of some records while also directing Fish and Wildlife to more
fully support its position should it wish to continue withholding others.
I. Background
Little need be said to tee up the narrow issues in this case. On February 6, 2018, the
Miami Herald reported that Fish and Wildlife had undertaken a review of the Florida Key deer to
determine whether the species should be removed from the endangered-species list or
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downgraded from “endangered” to “threatened.” ECF No. 1 (Compl.), ¶ 2. In the article, a FWS
spokesperson confirmed the report, stating that the agency was “finishing up an evaluation
related to the status of the Key deer required under the Endangered Species Act.” Id., ¶ 3. The
import of this potential change is significant: the species has been protected under the
Endangered Species Act and its predecessor statute since 1967, and Plaintiff believes that recent
events have only increased the existential threats to the species. See ECF No. 20 (Pl. MSJ &
Opp.) at 1–2.
Just weeks after publication of the article, Sierra Club — an organization “whose mission
includes educating and enlisting humanity to protect” wildlife — filed a FOIA request with Fish
and Wildlife to obtain records “relate[d] to the ongoing species status review for the Florida Key
deer (Odocoileus virginianus clavium).” Pl. MSJ & Opp. at 2–3 (citation omitted). Plaintiff
sought “[a]ll records generated since November 2016” pertaining to the review, including
records regarding the impetus for the review, the scientific information provided to and
generated by the agency, and any communications discussing the status and conservation of
Florida Key deer. See Compl., ¶ 47.
After acknowledging receipt, FWS informed Plaintiff that its request had been placed in
the “exceptional/voluminous” processing track but failed to provide an estimated completion
date. Id., ¶ 49. Apart from some minor administrative communications, Plaintiff did not hear
from Fish and Wildlife again until September of that year, when it released three pages of
records as a “partial response.” Id., ¶¶ 54–55. The agency indicated that it had withheld further
documents, principally invoking Exemption 5. Id., ¶ 55.
Almost a year later, after receiving nothing further, Plaintiff filed this suit. Id., ¶¶ 56–60.
Over the course of this litigation, Defendant has turned over 936 pages of responsive documents
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in full and portions of another 178 pages. See ECF Nos. 10, 11, 13 (Joint Status Reports). It has
withheld a total of 251 pages in full under Exemptions 5 and 6. Id.
According to Sierra Club, the most notable withheld pages include the final and draft
copies of the agency’s Species Status Assessment (SSA) report on the deer, as well as
communications regarding the production of the report. See ECF No. 19-2, Exh. D (Vaughn
Index) at 1–12; Pl. MSJ & Opp. at 8. The SSA report is a scientific report compiling an array of
biological information on a species, developed to inform assessments under the Endangered
Species Act. See Pl. MSJ & Opp., Exh. 13 (SSA Framework Fact Sheet); id., Exh. 15 (FWS
Letter Describing SSA). It is intended as a “highly integrated, explicit, and scientifically based”
foundation to “evaluate the biological and conservation status of a species.” FWS Letter
Describing SSA. As the agency explains, the SSA “provides the best available scientific
information for comparison to policy standards to guide” agency decisions. See SSA Framework
Fact Sheet at 2.
Fish and Wildlife began work on the SSA report in July 2017. See Compl., ¶¶ 39–41.
By October of that year, the first draft was circulated to a Florida state conservation agency. Id.,
¶ 42. FWS produced an updated draft in November 2017 and another in December 2017, before
“complet[ing]” the report in January 2018. See Pl. MSJ & Opp. at 8 nn.2–3.
Defendant has withheld under the deliberative-process privilege covered by Exemption 5
the final January 2018 SSA report; prior full drafts of the report; “comments by FWS scientists
and other scientific experts on the contents of the SSA report”; “the peer review comments of
external scientists on the contents of the SSA report”; and portions of “communications
discussing the factual information in the SSA report.” Id. at 8. Although there were earlier
disputes about the adequacy of FWS’s search and its redactions pursuant to Exemption 6, all that
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now remains is Plaintiff’s challenge to the deliberative-process withholdings, which the parties
have briefed in Cross-Motions for Summary Judgment.
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). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable to the non-moving party. See
Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
FOIA cases typically and appropriately are decided on motions for summary judgment,
and the agency bears the ultimate burden of proof. See Defenders of Wildlife v. Border Patrol,
623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d
68, 73 (D.D.C. 2007); see also DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). The Court
may grant summary judgment based solely on information provided in an agency’s affidavits or
declarations when they describe “the documents and the justifications for nondisclosure with
reasonably specific detail, demonstrate that the information withheld logically falls within the
claimed exemption, and are not controverted by either contrary evidence in the record nor by
evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981).
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III. Analysis
Congress enacted FOIA in order “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 thus provides 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
within one of nine statutorily created exemptions. Id. § 552(b)(1)–(9). This Court can compel
the release of any records that do not satisfy the requirements of at least one exemption. See 5
U.S.C. § 552(a)(4)(B); U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S.
749, 755 (1989).
“FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the
district courts to ‘determine the matter de novo.’” Reporters Comm., 489 U.S. at 755 (quoting 5
U.S.C. § 552(a)(4)(B)). In making this determination, the court “[a]t all times . . . must bear in
mind that FOIA mandates a ‘strong presumption in favor of disclosure.’” Nat’l Ass’n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)).
A “veritable avalanche of FOIA-related precedent” guides this Court’s determination of
whether Fish and Wildlife has carried its burden of establishing that a given exemption applies.
Ullah v. CIA, 435 F. Supp. 3d 177, 182 (D.D.C. 2020). 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.,
293 F. Supp. 3d 218, 224 (D.D.C. 2018) (quoting King v. U.S. Dep’t of Justice, 830 F.2d 210,
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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 v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)
(quoting Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007)).
The Court begins with an examination of Exemption 5 and concludes with a brief
discussion of segregability.
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,
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-work-product privilege,
and the attorney-client privilege. See Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., 905
F. Supp. 2d 206, 216 (D.D.C. 2012). Here, Fish and Wildlife only invokes the deliberative-
process privilege.
That 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
understanding that “if agencies were forced to ‘operate in a fishbowl,’” the “quality of
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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) (citations omitted).
In addition to constituting an inter- or intra-agency communication, a record must meet
two requirements to qualify under this privilege. 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 —
i.e., “reflect[ing] the give-and-take of the consultative process.” Id. (citation omitted). In this
way, Exemption 5 focuses on documents containing information that composes “part of a
process by which governmental decisions and policies are formulated.” Sears, 421 U.S. at 150(citation and internal quotation marks omitted). Finally, even when a record meets those
requirements, the agency must also demonstrate that it “reasonably foresees that disclosure
would harm an interest protected by” the 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)).
The good news for the reader here is that Sierra Club’s challenge is quite narrow. It
concedes that the produced documents are both predecisional and constitute inter-agency or
intra-agency memoranda or letters, thus satisfying two of the three requirements to bring records
within the exemption. See Pl. MSJ & Opp. at 9. What remains is Plaintiff’s contention that
three types of documents are not deliberative: the final SSA report on the deer; the three earlier
drafts of the report; and comments and “communications identifying the existence of scientific
information” relevant to the report. Id. at 14, 19. The Court looks at each type of document
separately before considering whether FWS has shown foreseeable harm from release of the
documents.
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1. Final SSA Report
Start with the final SSA report from January 2018, which presents an easy call for
release. In its briefing, Fish and Wildlife makes only a perfunctory argument for withholding,
broadly claiming that the report is “a draft” that constitutes “internal work product that informs
its associated decision.” ECF No. 19 (Def. MSJ) at 5. Yet, Defendant provides no support for
either position beyond the declaration of one of its FOIA coordinators that simply repeats the
above language. See ECF 19-2 (Declaration of Tiffany McClurkin), ¶¶ 39–40. Sierra Club
counters that the report is final and, according to the agency itself, is “a factual, scientific report
that is developed independently from any policy decision” and thus cannot be deliberative. See
Pl. MSJ & Opp. at 8, 14–15; see also FWS Letter Describing SSA.
On its face, a factual scientific report, produced “independently from any” regulatory or
policy decisions, see FWS Letter Describing SSA, does not qualify as deliberative. According to
Defendant, the SSA report “begin[s] with a compilation of the best available information on the
species . . . and its ecological needs,” before “decrib[ing] the current condition” of the species
and “forecast[ing] the species response to probable future scenarios of environmental conditions
and conservation efforts.” Id. As Fish and Wildlife emphasizes in its own descriptions of the
SSA framework, the final report is meant “to aid decision makers who must use the best
available scientific information to make policy decisions.” SSA Framework Fact Sheet at 2.
Nothing in this description indicates that the report contains “advisory opinions,
recommendations[, or] deliberations” regarding the agency process at issue. Sears, 421 U.S. at
150; see also Pub. Citizen, Inc. v. OMB, 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.”). Nor does it help show that the report may reflect anything that can be
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construed as a personal opinion of an agency official. See Coastal States Gas Corp. v. Dep’t of
Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (“The exemption thus covers . . . subjective
documents which reflect the personal opinions of the writer.”). Simple relevance to the policy-
making process is not sufficient to bring a document within the ambit of Exemption 5. See
Citizens for Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 648 F. Supp. 2d
152, 158–59 (D.D.C. 2009) (requiring disclosure of records in which “no agency policy is being
debated or discussed” even though the “[records] are, in the most general sense, part of an intra-
agency discussion relating” to agency’s decisionmaking). A purely factual scientific report that
is untethered from direct policy- or decisionmaking does not constitute a record “so candid or
personal in nature that public disclosure is likely in the future to stifle honest and frank
communication within the agency.” Coastal States, 617 F.2d at 866.
The sum total of FWS’s reasoning on this point seems to be that it views every document
as a draft “until the associated decision is published in the Federal Register,” and drafts are
protected under Exemption 5. See Def. MSJ at 5; ECF No. 22 (Def. Reply) at 2. But the key
deliberative-process inquiry is a functional one: courts ask whether disclosure is likely “to stifle
honest and frank communication within the agency,” not whether the document fits into a pre-
determined category. See Coastal States, 617 F.2d at 866. Under this functional inquiry, the
Court finds that release of the report would in no way “stifle” conversation within the agency, as
it contains no personal opinions, no recommendations, no deliberations, and nothing that would
cause the agency’s decisionmakers to “temper candor” in their remarks out of “a concern for
appearances.” National Sec. Archive v. CIA, 752 F.3d 460, 462 (D.C. Cir. 2014) (quoting
United States v. Nixon, 418 U.S. 683, 705 (1974)).
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Finally, contrary to Defendant’s claims, the January 2018 report appears not to be a draft
at all. Plaintiff establishes a compelling factual record of the agency itself treating the document
as final. In written communications, it referred to the report as “completed in January 2018” and
detailed plans to release it to the public in August 2019 after a public information meeting about
the status of the deer. See Pl. MSJ & Opp. at 8 n.2; see also id., Exh. 16 at 1 (Timothy Merritt
Email), Exh. 4 at 3–4 (Karimah Schoenhut Letter). In the Court’s view, both serve as clear
indicators of finality. Nor does Defendant point to any authority — either judicial or
administrative — for its contention that SSA reports are considered non-final until “the
associated decision is published in the Federal Register.” Def. MSJ at 5. Because Fish and
Wildlife provides no other evidence or argument that the final SSA report is deliberative, the
Court finds that the privilege does not shield it from disclosure.
2. Draft SSA Reports
The deliberative character of the next set of documents is more difficult to assess, thanks
in large part to the cursory nature of the agency’s briefing. Sierra Club seeks access to three
prior drafts of the SSA report, claiming that they are purely factual. See Pl. MSJ & Opp. at 11.
These reports, it bears noting, appear in segments and constitute no fewer than 24 entries in the
Vaughn Index. Id. at 8 nn.3–4; see also Vaughn Index at 5–11. Unsurprisingly, Fish and
Wildlife rejoins that these draft documents fall within Exemption 5, see Def. MSJ at 5,
emphasizing that the drafting process is naturally deliberative, as the agency must “identify
important issues, share scientific information and brainstorm potential avenues for tracking
species.” McClurkin Decl., ¶ 47.
FWS is broadly correct inasmuch as the deliberative-process privilege has frequently
been held to cover draft documents. See Def. Reply at 2 (citing Almeda v. U.S. Dep’t of Educ.,
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No. 17-2641, 2020 WL 601628, at *3 (D.D.C. Feb. 7, 2020) (“The deliberative process privilege
protects not only the content of drafts, but also the drafting process itself.”)). This makes sense,
as Exemption 5 is designed to shield the “process by which governmental decisions and policies
are formulated.” Petroleum Info. Corp. v. Dep’t of the Interior, 976 F.2d 1429, 1433 (D.C. Cir.
1992) (citing Sears, 421 U.S. at 150); see also Coastal States, 617 F.2d at 866 (finding document
deliberative when “it reflects the give-and-take of the consultative process”). Such deliberations
are more clearly seen in draft documents, where the process of decisionmaking unfolds over time
and is manifested in the changes between versions.
Sierra Club counters that purely factual material is not protected even in drafts. See Pl.
MSJ & Opp. at 11–12, 14. Yet, while the privilege does not generally extend to mere factual
recitations, see In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997), “the D.C. Circuit has
cautioned against overuse of the factual/deliberative distinction.” Goodrich Corp. v. U.S. EPA,
593 F. Supp. 2d 184, 189 (D.D.C. 2009) (citing Dudman Commc’ns Corp. v. U.S. Dep’t of Air
Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)). Such hesitation stems from the recognition that
the drafter’s selection of facts can itself reveal the decisionmaking process. See, e.g., Mead
Data, 566 F.2d at 256; Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 68 (D.C. Cir. 1974).
And the privilege “protects not only communications which are themselves deliberative in
nature, but all communications which, if revealed, would expose to public view the deliberative
process of an agency.” Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982);
see also Mapother v. Dep’t of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993) (“[T]he privilege
serves to protect the deliberative process itself, not merely documents containing deliberative
material”).
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That said, the agency is far from in the clear here since it “fail[s] to provide necessary
contextual information about the particular decisionmaking processes to which the [draft SSA
reports] contributed, and the role the [drafts] played in those processes.” Elec. Frontier Found. v.
U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011) (citing Hinckley v. United
States, 140 F.3d 277, 284 (D.C. Cir. 1998) (“The agency must establish what deliberative
process is involved, and the role played by the documents in issue in the course of that
process.”)). In its Vaughn Index describing the documents Plaintiff seeks, Fish and Wildlife
provides nothing more than vague entries restating the legal requirements of Exemption 5. See,
e.g., Vaughn Index at 10 (describing December 2017 draft only with reference to buzzwords
associated with deliberative-process privilege and without any discussion of context).
“A document’s context is the sine qua non of the court’s assessment of whether or not the
document is . . . deliberative.” Conservation Force v. Jewell, 66 F. Supp. 3d 46, 61 (D.D.C.
2014), aff’d, No. 15-5131, 2015 WL 9309920 (D.C. Cir. Dec. 4, 2015). “For example, ‘[a]
document from a junior to a senior is likely to reflect . . . subjective opinions’” and thus may
rightly come within Exemption 5. Id. at 61 (quoting Access Reports v. Dept. of Justice, 926 F.2d
1192, 1195 (D.C. Cir. 1991)). This is especially true where agency employees distill voluminous
records into factual summaries for higher-ups. See Montrose Chemical, 491 F.2d at 70–71
(granting protection in such a situation). In contrast, a document “moving from senior to junior
is far more likely to manifest decisionmaking authority and to be the denouement of the
decisionmaking rather than part of its give-and-take.” Access Reports, 926 F.2d at 1195.
Similarly, documents that do not “invite a response from the requesting official” are not likely to
satisfy Exemption 5 requirements. Schlefer v. United States, 702 F.2d 233, 243 (D.C. Cir.
1983).
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FWS’s Vaughn entries provide little to no information as to the “identities, positions, and
job duties of any of the authors or recipients of the withheld documents” or the manner in which
the documents were created — e.g., how drafters culled particular information. Conservation
Force, 66 F. Supp. 3d at 61 (citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1204 (D.C. Cir.
1991)) (agency did not meet Exemption 5 burdens where it failed to “explain such matters as
how decisions like those in issue are reached; the role that staff discussion and memoranda play
in such decisions; the manner in which such decisions are memorialized and explained; and
whether such decisions are treated, in later agency decisionmaking, as precedents”). Just as in
Conservation Force, “this Court simply cannot properly determine whether the deliberative
process privilege applies.” Id. Stated more plainly, this Court has very little idea of how SSA
reports are drafted, for whom, and who directs the editing process. Without any sense of the
process, the Court is hesitant to rule on their deliberative nature.
The context may be especially important here, where the Endangered Species Act
requires FWS decisionmakers to act “solely on the basis of the best scientific and commercial
data available.” 16 U.S.C. §§ 1533(b)(1)(A), 1536(a)(2); see Pl. MSJ & Opp. at 11. The SSA
framework “is an analytical approach developed by [FWS] to deliver foundational science for
informing all Endangered Species Act (ESA) decisions.” SSA Framework Fact Sheet at 1.
Although Defendant spends some time dissecting the interpretation of “best,” noting
“disagreement within the scientific community” and “assumptions and uncertainties” inherent in
scientific information, see ECF No. 22-1 (Supplemental Declaration of Tiffany McClurkin), ¶ 2,
creation of an SSA report “does not appear to involve the breadth of discretion, and the wide
range of considerations, the many forecasts and ‘judgment calls’ involved in making” the kinds
of policy determinations protected by the deliberative-process privilege. Petroleum Infor. Corp.,
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976 F.2d at 1438; see also Ctr. for Biological Diversity v. EPA, 279 F. Supp. 3d 121, 150–52
(D.D.C. 2017).
It may well be the case, nonetheless, that the draft SSA reports are deliberative, and that
their disclosure “would expose [Fish and Wildlife’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, 815 F.2d at 1568. As iterative analyses are hallmarks of records to which
the privilege often applies, the Court will provide Defendant another opportunity to explain
“with reasonably specific detail” how the information at hand “logically falls within” Exemption
5. Elec. Frontier Found. v. DOJ, 739 F.3d 1, 7 (D.C. Cir. 2014) (citation omitted); see also
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 18–19
(D.D.C. 2013) (requiring agency to provider more robust explanations for withholdings in
comparable circumstances). It expects that any renewed effort will remedy the various
shortcomings identified here.
3. Comments on and about SSA Reports
The final category of documents at issue consists of email communications about the
content and development of the SSA reports and comments thereon by internal and external
experts. See Pl. MSJ & Opp. at 8. These are the most likely of all the documents discussed so
far to be deliberative in nature. Documents in which agency staff and consultants discuss
development of the reports may plausibly “reflect the give and take of the deliberative process.”
Public Citizen, 598 F.3d at 876. The comments and communications thus strike the Court as
likely to be quintessential “advisory opinions, recommendations, [or] deliberations” protected
under Exemption 5. Sears, 421 U.S. at 150 (citation omitted).
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Unfortunately for the agency, it neglects to provide the Court with specifics of what these
records contain, who drafted them, and why they should be considered deliberative. In fact,
much of Defendant’s abbreviated briefing focuses exclusively on the reports themselves,
ignoring these other records. See Def. MSJ at 3–5; Def. Reply at 2–3.
As with the draft SSA reports, because internal communications are prototypical records
to which the deliberative-process privilege usually applies, the Court will allow Defendant a final
chance to sufficiently explain why the information at hand comes within Exemption 5.
The Court should also note that Plaintiff has requested that the Court conduct an in
camera review of nine documents that fall within this category. See Pl. MSJ & Opp. at 30–32.
“[D]istrict court judges [have] broad discretion in determining whether in camera review is
appropriate.” Wild Horse Freedom Fed’n v. U.S. Dep’t of the Interior, Bureau of Land Mgmt.,
316 F. Supp. 3d 315, 318 (D.D.C. 2018) (quoting Armstrong v. Exec. Office of the President, 97
F.3d 575, 577–78 (D.C. Cir. 1996) (second alteration in original). As this Court has noted
elsewhere:
In camera review . . . is “not a substitute for the government’s
obligation to provide detailed public indexes and justifications
whenever possible.” Lykins v. U.S. Dep’t of Justice, 725 F.2d 1455,
1463 (D.C. Cir. 1984) . . . . As the D.C. Circuit noted in Lykins, the
government’s documentary obligations not only enable the
reviewing court to make an informed and accurate determination,
but they also allow the adversary system to operate effectively and
encourage transparency by “forc[ing] the government to analyze
carefully any material withheld.” [Id.] at 1463.
Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 235–36 (D.D.C.
2013).
Here, because the Court is already requiring further analysis, it makes sense to request
that Fish and Wildlife more fully address the deliberative character of these documents before
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resorting to the “generally disfavored” tool of in camera review. Id. (quoting PHE, Inc. v. Dep’t
of Justice, 983 F.2d 248, 253 (D.C. Cir. 1993)).
4. Foreseeable Harm
Before concluding its analysis of the deliberative-process privilege, the Court looks at
one additional point Sierra Club raises. 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, 442 F. Supp. 3d at 256 (alteration in original) (quoting 5 U.S.C. § 552(a)(8)(A)(i)(I)).
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 Patrol, 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.
In keeping with the general character of its briefing, Fish and Wildlife offers little to
substantiate its claims of foreseeable harm from the disclosure of the draft reports or the
communications surrounding them. See McClurkin Decl., ¶ 40; McClurkin Decl., ¶ 3. Beyond
offering the boilerplate that release in general “would cause a chilling effect to the agency and
would stifle internal communications,” id., Defendant repeatedly contends that “[p]re-mature
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release would be confusing to the public” in light of the fact that the agency has not yet made a
determination on the status of the deer. See Vaughn Index at 1–12. The Court remains
unpersuaded that a non-specific fear of confusion suffices to meet the agency’s burden. Should
FWS wish to keep the draft SSA reports and corresponding communications confidential, the
Court expects a more robust justification on this score in supplemental submissions.
B. Segregability
The last concern Plaintiff notes addresses whether the agency has sufficiently segregated
properly redacted material from what should be released. FOIA requires that “[a]ny reasonably
segregable portion of a record shall be provided to any person requesting such record after
deletion of the portions which are exempt.” 5 U.S.C. § 552(b). While Fish and Wildlife is
“entitled to a presumption that [it] complied with the obligation to disclose reasonably
segregable material,” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013) (alteration in original)
(citation omitted), this presumption of compliance does not obviate the agency’s obligation to
carry its evidentiary burden and fully explain its decisions on segregability. See Mead Data, 566
F.2d at 261–62. To do so, the agency must provide “a ‘detailed justification’ and not just
‘conclusory statements’ to demonstrate that all reasonably segregable information has been
released.” Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010) (citation omitted); see also
Armstrong, 97 F.3d at 578 (determining that government affidavits explained nonsegregability of
documents with “reasonable specificity”). “Reasonable specificity” can be established through a
“combination of the Vaughn index and [agency] affidavits.” Johnson v. Exec. Office for U.S.
Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002).
All Defendant offers on the matter is its conclusory assertion that it has “carefully
reviewed the responsive records on a line-by-line and page-by-page basis.” Def. MSJ at 7; see
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also McClurkin Decl., ¶ 68 (same). 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 — e.g., inconsistencies in the redaction of the same information across
records. See Pl. MSJ & Opp. at 27–29.
As Fish and Wildlife renews its review of the documents at issue in this case, the Court
trusts that it will carefully determine whether any reasonably segregable, non-exempt
information can be released — including, for example, purely factual information that has
already been released in other forms, see id. at 27–28, and any other non-deliberative text that
does not qualify for protection under Exemption 5. At the least, it will require a better
explanation in any subsequent declaration.
IV. Conclusion
For these reasons, the Court will grant in part and deny in part Plaintiff’s Motion for
Summary Judgment, and it will deny Defendant’s Motion for Summary Judgment in full. Fish
and Wildlife must turn over the final January 2018 SSA report, and a separate Order that issues
contemporaneously will set forth how the parties should proceed as to the other documents.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: February 26, 2021
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