Judicial Watch, Inc. v. U.S. Department of Justice

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Civil No. 19-cv-800 (TSC) ) UNITED STATES DEPARTMENT OF ) JUSTICE, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Judicial Watch, Inc. sued Defendant U.S. Department of Justice (DOJ) seeking

to compel disclosure of records responsive to its Freedom of Information Act (FOIA) request.

Both parties have filed motions for summary judgment. (ECF Nos. 27 & 29.) Judicial Watch

challenges only DOJ’s invocation of Exemption 5, arguing that it has not met its burden under

the FOIA Improvement Act of 2016. (ECF No. 29-1, Pl. Br.) For the reasons set forth below,

the court will DENY both motions.

I. BACKGROUND

In July 2015, the FBI began investigating former Secretary of State Hillary Clinton’s

alleged use of unclassified private email servers. (ECF No. 27-2, Hardy Decl. ¶ 5.) A year later,

then FBI Director James Comey publicly announced that the FBI would close the investigation,

which it did the next day. (Id.) Following this announcement, attorneys in the FBI’s Office of

General Counsel prepared two sets of talking points for FBI managers to use in intra-agency

briefings on the investigation: one for the Executive Assistant Directors (EADs), and one for the

1 Supervisory Agents in Charge (SACs). (Id. ¶ 6.) FBI officials also drafted FAQs and proposed

answers. (Id.)

In 2018, Plaintiff submitted a three-part FOIA request to the FBI, seeking:

• All final and draft copies of talking points prepared by the FBI for its EADs relating to the “Mid-Year Exam” investigation (MYE Talking Points) following the July 5, 2016 James Comey press conference in which he indicated that he would not recommend prosecuting Hillary Clinton;

• All final and draft copies of a one-page version of the aforementioned MYE Talking Points created for FBI SACs;

• All final and draft copies of charts of “statutory violations considered during the investigation [of Hillary Clinton’s server], and the reasons for the recommendation not to prosecute . . .”

(Id. ¶ 7.) Having received no documents in response to these requests, Plaintiff filed this lawsuit

to compel disclosure of responsive records.

In September 2019, the FBI produced final copies of the SACs’ talking points and

notified Judicial Watch that final copies of the EADs’ talking points had already been released in

separate litigation by Judicial Watch. (Id. ¶ 9.) The FBI also withheld in full 70 pages of draft

EADs and SACs talking points pursuant to FOIA Exemptions 5, 6, 7(C), and 7(E). (Id. ¶ 10.) It

withheld 47 pages of those drafts exclusively under Exemption 5, which Plaintiff challenges on

the grounds that DOJ has failed to meet its burden under the FOIA Improvement Act of 2016.

(Id. ¶¶ 6, 10.)

II. LEGAL STANDARD

“FOIA provides a ‘statutory right of public access to documents and records’ held by

federal government agencies.” Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Justice, 602

F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir.

1982)). The Act requires federal agencies to comply with requests to make their records

2 available to the public, unless such “information is exempted under [one of nine] clearly

delineated statutory [exemptions].” Id. (internal quotation marks omitted). See also 5 U.S.C.

§§ 552(a)–(b). “The agency bears the burden of justifying the application of any exemptions,

‘which are exclusive and must be narrowly construed.’” Ctr. for Investigative Reporting v. U.S

Dep’t of the Interior, No. 18-cv-1599, 2020 WL 1695175, at * 3 (Apr. 7, 2020) (quoting Mobley

v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015)). “FOIA cases typically and appropriately are

decided on motions for summary judgment.” Georgacarakos v. FBI, 908 F. Supp. 2d 176, 180

(D.D.C. 2012) (quoting Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87

(D.D.C. 2009)).

Summary judgment in FOIA cases may be based solely on information provided in an

agency’s supporting affidavits or declarations if they are “relatively detailed and non-

conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal

quotation and citation omitted). These declarations are “accorded a presumption of good faith,

which cannot be rebutted by purely speculative claims about the existence and discoverability of

other documents.” Id. (internal quotation and citation omitted).

“To successfully challenge an agency’s showing that it complied with the FOIA, the

plaintiff must come forward with specific facts demonstrating that there is a genuine issue with

respect to whether the agency has improperly withheld . . . records.” Span v. U.S. Dep’t of

Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010) (citing U.S. Dep’t of Justice v. Tax Analysts,

492 U.S. 136, 142 (1989)) (quotation marks omitted). By corollary, “[a] non-moving party’s

complete failure to come forward with evidence to demonstrate the existence of a genuine issue

of material fact constitutes a ‘reason’ for the grant of summary judgment under [Rule 56(e)].”

Smith v. U.S. Dep’t of Justice, 987 F. Supp. 2d 43, 47 (D.D.C. 2013). Summary judgment is

3 proper where the record shows there is no genuine issue of material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002).

Courts must view “the evidence in the light most favorable to the non-movant,” “draw[] all

reasonable inferences accordingly,” and determine whether a “reasonable jury could reach a

verdict” in the non-movant’s favor. Lopez v. Council on Am.–Islamic Relations Action Network,

Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).

III. ANALYSIS A. Exemption 5

DOJ withheld documents under Exemption 5, claiming protection under the deliberative

process privilege. 1 Exemption 5 shields documents that would “normally [be] privileged from

discovery in civil litigation against the agency,” such as documents protected by the attorney-

client, work-product, and deliberative process privileges. Tax Analysts v. IRS, 117 F.3d 607, 616

(D.C. Cir. 1997). To withhold a document under Exemption 5, an agency must show that “the

disclosures of information withheld . . . would harm the agency’s deliberative process.” Judicial

Watch v. U.S. Dep’t of Commerce, 375 F. Supp. 3d 93, 97 (D.D.C. 2019) (Judicial Watch I)

(citing 5 U.S.C. § 552(a)(8)(A)); see also Ctr. for Investigative Reporting v. U.S. Customs &

Border Prot., 436 F. Supp. 3d 90, 100 (D.D.C. 2019). Judicial Watch does not contest that the

deliberative process privilege protects the documents; instead, it argues that DOJ has not shown

that releasing the documents would harm the agency’s deliberative process. (Pl. Br. at 3–8.)

1 Initially, DOJ also claimed some of the documents could be withheld under Exemption 5 as attorney-work product. (ECF No. 27, Def. Br. at 8–9.) It later withdrew this claim. (ECF No. 31, Def. Reply at 3.)

4 1. Burden to Establish Harm

The FOIA Improvement Act of 2016 (the Act), enacted in response to concerns about

FOIA’s efficacy, defines agencies’ burden to establish harms flowing from disclosure. Pub. L.

No. 114-185 (2016). The Act codified an existing DOJ policy, see Judicial Watch I, 375 F.

Supp. 3d at 97, permitting federal agencies to withhold information under a FOIA exemption

only if (1) they could “reasonably foresee[] that disclosure would harm an interest protected by

an exemption,” or (2) “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i)(I)–(II). DOJ

contends that because the Act codified existing agency policy, its burden under the Act has not

changed. (Def. Reply at 6–8.) The court agrees with Judicial Watch that the Act “provides a

meaningful and heightened standard.” Judicial Watch, Inc. v. U.S. Dep’t of Justice, No. 17-cv-

0832, 2019 WL 4644029, at *5 (D.D.C. Sept. 24, 2019) (Judicial Watch II).

To meet its burden under the Act, an agency must “identify specific harms to the relevant

protected interests that it can reasonably foresee would actually ensue from disclosure of the

withheld materials.” Id.; see also Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 371

(D.C. Cir. 2020) (noting government showed that it “reasonably foresaw that disclosure would

harm an interest protected by the deliberative-process privilege.”) “The question is not whether

disclosure could chill speech, but rather if it is reasonably foreseeable that it will chill speech

and, if so, what is the link between this harm and the specific information contained in the

material withheld.” Judicial Watch I, 375 F. Supp. 3d at 101. It is not enough for an agency to

speculate that harm could result from disclosure. Id. It must “connect[] the harms” in a

“meaningful way to the information withheld, such as by providing context or insight into the

specific decision-making processes or deliberations at issue, and how they in particular would be

harmed by disclosure.” Judicial Watch II, 2019 WL 4644029, at *5; see also Rosenberg v. U.S.

5 Dep’t of Def., 442 F. Supp. 3d 250, 259 (D.D.C. 2020). In doing so, an agency must avoid the

use of “nearly identical boilerplate statements” and “generic and nebulous articulations of harm.”

Ctr. for Investigative Reporting, 436 F. Supp. 3d at 106 (quoting Judicial Watch II, 2019 WL

4644029, at *4–5).

2. DOJ’s Claimed Harms

DOJ argues that disclosure of the drafts would harm two interests protected by the

deliberative process privilege: (1) avoiding public confusion, and (2) ensuring that agency

employees are able to engage in full and frank discussion. 2 (Hardy Decl. ¶¶ 9–10, 20.)

a. Public Confusion

DOJ has failed to provide more than speculation that disclosure of the drafts would cause

public confusion. See Judicial Watch I, 375 F. Supp. 3d at 101. It contends that because the

drafts differ substantively from their final versions, they might be mistaken for final agency

policy if released. (Hardy Decl. ¶¶ 18, 20.) DOJ admits that many of the drafts contain edits,

comments, and recommendations that track these changes (e.g., Bates Nos. 27–31). (ECF No.

27-2 at Ex. G, Revised Vaughn Index.) Indeed, as the revised Vaughn index descriptions

indicate, all but five of the withheld pages at issue contain comments, edits, recommendations, or

some combination of the three. (See id.) Because these documents have at least some markings

that indicate they are drafts, it is unlikely that they would be mistaken for final agency policy.

2 While the parties appear to disagree on the scope of the harms protected by the deliberative process privilege, they agree that it includes those currently invoked by DOJ and articulated in Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980): 1) preserving frank discussions between government officials, 2) preventing premature disclosure of proposed policies, and 3) avoiding public confusion from releasing inaccurate information. (Def. Reply at 9; ECF No. 33, Pl. Reply at 6.) See also Machado Amadis, 971 F.3d at 371 (noting the deliberative process privilege “protects ‘debate and candid consideration of alternatives within an agency,’ thus improving agency decisionmaking.” (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772 (D.C. Cir. 1978))).

6 DOJ further contends that disclosing drafts that may contain factually inaccurate

information would cause public confusion. (ECF No. 31-1, Seidel Decl. ¶ 8.) However, DOJ

admits that it has not fully vetted these drafts for factual accuracy. (Id.) Until it has done so, and

can assert to this court that the documents do, in fact, contain inaccurate information, DOJ’s

assertions are merely speculative.

Moreover, the boilerplate statements in DOJ’s affidavits and revised Vaughn index do not

support DOJ’s argument that public confusion is indeed “reasonably foreseeable,” and not

merely speculative. See, e.g., Rosenberg, 442 F. Supp. 3d at 259 (finding greater specificity

needed to meet heightened burden).

b. Discouraging Frank Dialogue

DOJ likewise fails to meaningfully connect the harm of discouraging frank dialogue to

the information withheld, relying on boilerplate statements to justify its withholdings. See Ctr.

for Investigative Reporting, 436 F. Supp. 3d at 106. For example, DOJ declares that “[t]he harm

here would be a chilling effect on agency employees’ willingness to share such drafts if they

knew their unrefined ideas would be subject to public disclosure,” (Hardy Decl. ¶ 20), but fails to

draw a link between the stated harm and the specific drafts withheld. It does not “provid[e]

context or insight into the specific decision-making processes or deliberations at issue, and how

they in particular would be harmed by disclosure.” Judicial Watch II, 2019 WL 4644029, at *5.

And while DOJ’s second declaration provides a more detailed account, its assertion that

releasing the drafts “would harm the ability of attorneys and additional staff members within the

FBI to be completely candid with FBI senior executives in expressing their views with which the

executives may subsequently disagree,” (Seidel Decl. ¶ 9), falls short of meaningfully connecting

7 the harm to the specific information withheld. DOJ’s revised Vaughn index descriptions are

equally nebulous:

The release of the material would have the foreseeable harm of discouraging frank and open dialogue among FBI staff deliberating over information being prepared for FBI executives’ consideration. If FBI staff believed that their preliminary comments and edits would be released to the public[,] it is foreseeable that agency staff would refrain from making edits or comments. Thus, senior FBI leadership would be less likely to gain the full and necessary understanding of the important issues that serve as a basis for agency decision-making.

(ECF No. 31-1 at Ex. A, 10–19.)

In Natural Resources Defense Council v. U.S. Environmental Protection Agency, the

court found that the EPA’s supplemental affidavit “adequately articulated ‘the link between [the]

harm and the specific information contained in the material withheld,’” despite containing some

boilerplate language. No. 17-cv-5928, 2019 WL 4142725, at *5 (S.D.N.Y. 2017) (quoting

Judicial Watch I, 375 F. Supp. 3d at 101). In that case, however, the EPA provided

“substantially more context for the decisionmaking processes in question and the harms that

would reasonably ensue from disclosure of the material.” Nat. Resources Def. Council, 2019

WL 4142725, at *5 (“EPA explains in some detail how disclosure of records relating to the

Section 6(a) rulemakings, the pesticide registration reviews, the Chemical Data Reporting rules,

and the evaluation of existing regulations could prematurely disclose agency rulemakings or

policies that have not been finalized.”). DOJ has not provided the kind of link between the

alleged harm and the information in the withheld material that the court found in Natural

Resources Defense Council. Accordingly, DOJ has failed to show that it could “reasonably

foresee” that harm would result from disclosure.

8 Consequently, the court will deny summary judgment for DOJ regarding Exemption 5.

The court will, however, permit DOJ to supplement the record regarding foreseeable harm.

Thus, the court will also deny summary judgment for Judicial Watch.

B. Appropriateness of In Camera Review

Judicial Watch asks the court to consider conducting in camera review to determine

whether DOJ’s assertion of Exemption 5 is proper. (Pl. Br. at 12.) FOIA authorizes courts to

examine in camera agency records withheld under any of the nine FOIA exemptions. 5 U.S.C.

§ 552(a)(4)(B). In camera review is a discretionary tool. Juarez v. U.S. Dep’t of Justice, 518

F.3d 54, 59–60 (D.C. Cir. 2008) (“It is true that FOIA provides district courts the option to

conduct in camera review, but it by no means compels the exercise of that option.”) (internal

citation omitted). Both Congress and the courts have made clear that while in camera review is

not required, it may be necessary to carry out the court’s “statutory obligation to conduct a

meaningful de novo review.” Allen v. CIA, 636 F.2d 1287, 1298 (D.C. Cir. 1980).

Because in camera review is “necessarily conducted without benefit of criticism and

illumination by a party with the actual interest in forcing disclosure,” the court should use it

sparingly. Vaughn v. Rosen, 484 F.2d 820, 825 (D.C. Cir. 1973). It is not a substitute for an

agency’s production of affidavits and Vaughn indices. See, e.g., Elec. Frontier Found. v. U.S.

Dep’t of Justice, 826 F. Supp. 2d 157, 175 (D.D.C. 2011) (rejecting in camera review and

directing the agency to revise their Vaugh submissions). “If the agency fails to provide a

sufficiently detailed explanation to enable the district court to make a de novo determination of

the agency’s claims of exemption, the district court then has several options, including inspecting

the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.”

Spirko v. USPS, 147 F.3d 992, 997 (D.C. Cir. 1998). However, “the best approach is to direct

9 the agency to revise their Vaughn submissions, taking into account the deficiencies identified by

the Court.” Elec. Frontier Found., 826 F. Supp. 2d at 175.

Judicial Watch contends that the insufficiency of DOJ’s affidavits, the limited number of

pages at issue, and the strong public interest in disclosure tilt the balance in favor of in camera

review. (Pl. Br. at 12–13.) At this juncture, the court disagrees. While DOJ’s declarations and

Vaughn indices are currently insufficient to justify withholding documents under Exemption 5, it

should be given the opportunity to provide additional detail, taking into the account the

deficiencies identified in this opinion. See Elec. Frontier Found., 826 F. Supp. 2d at 175. This

is not a case where it is “impossible” for DOJ to provide “sufficiently detailed justifications.”

Allen, 636 F.2d at 1298. Therefore, the court will permit DOJ to supplement the record with

detailed factual support for its claim that disclosure of these drafts would harm the agency’s

deliberative process.

IV. CONCLUSION

For the reasons stated above, the court will DENY DOJ’s motion for summary judgment

and will DENY Judicial Watch’s cross-motion for summary judgment. A corresponding Order

will issue separately.

Date: September 29, 2020

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge