of Commerce with respect to plaintiff's FOIA requests. Indeed,
the severity of the revelations prompted the Commerce Department
to take the unprecedented tactic of moving for entry of judgment
against itself. See Judicial Watch v. United States Dep't of
Commerce, 34 F. Supp.2d 28, 29 (D.D.C. 1998). In addition, the
Commerce Department proposed a new, rigorously supervised search.
Id. at 37. Surprisingly, plaintiff Judicial Watch opposed
defendant's motion for entry of judgment. The Court denied
defendant's motion as providing an insufficient remedy and
granted partial summary judgment to Judicial Watch. The Court
also ordered the Commerce Department to begin the new search that
was proposed in the defendant's motion. In addition, the Court
ordered further discovery under the supervision of the Magistrate
Judge. Id. at 41-47.
In the same opinion, the Court resolved the outstanding motion
for partial summary judgment concerning documents located during
the first search. After reviewing those documents in camera,
the Court ultimately concluded that partial summary judgment was
appropriate as to these withholdings and reinstated its September
5, 1996 ruling. Id. at 45-46.
At the same time, however, it was brought to the Court's
attention that additional responsive documents had been uncovered
in the course of discovery. Accordingly, the Court directed the
defendant to file supplemental affidavits and indices on those
documents. See id. at 45 n. 12.
In December 1999, the Court granted defendant summary judgment
with respect to its withholdings under Exemptions 2 and 6 of the
FOIA. The Court, however, deferred ruling on defendant's
Exemption 4 and 5 withholdings and ordered supplemental indices
on the Exemption 4 materials and in camera review of the
Exemption 5 materials. The present motion for partial summary
judgment concerns the defendant's claims with respect to the
Exemption 5 documents only.*fn1
A. THE FREEDOM OF INFORMATION ACT
The Freedom of Information Act, 5 U.S.C. § 552, as amended by
the Freedom of Information Reform Act of 1986, §§ 1801-04 of
Pub.L. No. 99-570, 100 Stat. 3207, 3207-48 (1986), provides
citizens a statutory right of access to government information.
As its basic premise, the Act establishes that government agency
records should be accessible to the public. Accordingly, the FOIA
instructs government agencies to disclose agency records, unless
the requested records fall within one of the Act's nine
enumerated exemptions. 5 U.S.C. § 552(b)(1)-(9). As noted above,
the present motion concerns defendant's withholdings pursuant to
Exemption 5 of the FOIA.
In a FOIA action, summary judgment is appropriate when the
pleadings, together with the declarations, demonstrate that there
is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986); Alyeska Pipeline Serv. Co. v. EPA,
856 F.2d 309, 313 (D.C.Cir. 1988) (mere conflict in affidavits
insufficient to preclude summary judgment); Weisberg v. United
States Dep't of Justice, 627 F.2d 365, 368 (D.C.Cir. 1980).
FOIA matters are reviewed de novo, and the agency bears the
burden of justifying nondisclosure. See 5 U.S.C. § 552(a)(4)(B);
United States Dep't of Justice v. Reporters Comm. for Freedom of
the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774
To sustain their burden of proof, agencies may rely on the
declarations of their officials. Oglesby v. United States Dep't
of the Army, 920 F.2d 57, 68 (D.C.Cir. 1990). Indeed, courts
accord agency declarations a presumption of expertise,
Pharmaceutical Mfg. Ass'n v. Weinberger, 411 F. Supp. 576, 578
(D.D.C. 1976), provided the affidavits are clear, specific and
adequately detailed, and set forth the reasons for nondisclosure
in a non-conclusory manner. These declarations must be submitted
in good faith. See Hayden v. NSA, 608 F.2d 1381, 1387 (D.C.Cir.
1979). Once a court determines that an agency's affidavits are
sufficient, the court need not conduct any further inquiry into
their veracity. Id. Accordingly, to preclude summary judgment, a
plaintiff must demonstrate that a claimed exemption has been
When an agency declines to produce requested documents, it must
demonstrate that the claimed exemption applies.
5 U.S.C. § 552(a)(4)(B). To that end, agencies must submit Vaughn indices
that adequately describe the withheld information and explain how
the particular exemption is relevant. Founding Church of
Scientology v. Bell, 603 F.2d 945, 947 (D.C.Cir. 1979); Vaughn
v. Rosen, 484 F.2d 820 (D.C.Cir. 1973). Any reasonably
segregable portions of requested records must be disclosed once
the exempt portions have been redacted, Oglesby v. United States
Dep't of the Army, 79 F.3d 1172, 1176 (D.C.Cir. 1996). In
addition, district courts are required to consider segregability
issues even when the parties have not specifically raised such
claims. Trans-Pacific Policing Agreement v. United States Custom
Serv., 177 F.3d 1022, 1027 (D.C.Cir. 1999).
B. EXEMPTION 5
Exemption 5 of the FOIA exempts from mandatory disclosure
materials consisting of "inter-agency or intra-agency memorandums
or letters which would not be available by law to a party . . .
in litigation with the agency." 5 U.S.C. § 552(b)(5). This
exemption has generally been construed to permit the withholding
of documents that are privileged in the context of civil
discovery. NLRB v. Sears Roebuck & Co., 421 U.S. 132, 149, 95
S.Ct. 1504, 44 L.Ed.2d 29 (1975).
The threshold issue under Exemption 5 is whether the records in
question qualify as "inter-agency or intra-agency memorandums."
Defendant properly asserts that records created by the Department
of Commerce and circulated internally or externally to outside
entities for advice meet this threshold requirement. With respect
to the secondary consideration under Exemption 5 — whether such
materials would not be "available by law in litigation with the
agency," Defendant invokes Exemption 5 to shield from disclosure
various documents that it contends are covered by the
deliberative process privilege, the attorney-client privilege and
the attorney work product privilege. Because the Court finds that
the defendant has properly supported the withholding of these
documents under the deliberative process privilege, the Court
need not address whether these same documents also qualify for
protection under the attorney-client privilege or constitute
attorney work product.
1. The Deliberative Process Privilege
The deliberative process privilege is "predicated on the
recognition that the quality of administrate decision-making
would be seriously undermined if agencies were forced to operate
in a fish bowl." Dow Jones & Co. v. United States Dep't of
Justice, 917 F.2d 571, 573 (D.C.Cir. 1990). The purpose of the
privilege is threefold:
First, the privilege protects candid discussions
within an agency. Second, it prevents public
confusion from premature disclosure of agency
opinions before the agency established its final
policy. Third, it protects the integrity of an
agency's decision; the public should not judge
officials based on information they considered prior
to their final decisions.
Judicial Watch v. Clinton, 880 F. Supp. 1, 12 (D.D.C. 1995).
To prove the applicability of the deliberative process
privilege, an agency must show that the information sought is
predecisional and deliberative. Access Reports v. United States
Dep't of Justice, 926 F.2d 1192, 1194 (D.C.Cir. 1991). With
respect to demonstrating the predecisional aspect of a document,
an agency need not identify a specific final agency decision.
Instead, it is sufficient to establish "what deliberative process
is involved, and the role played by the documents in issue in the
course of that process." Coastal States Gas Corp. v. United
States Dep't of Energy, 617 F.2d 854, 868 (D.C.Cir. 1980). As
for the second aspect of the privilege-that the document contains
deliberative information — an agency must show that the document
makes recommendations or expresses opinions on matters facing the
agency. Mapother v. United States Dep't of Justice,
3 F.3d 1533, 1537 (D.C.Cir. 1993). Such deliberative documents
frequently consist of "advisory opinions, recommendations, and
deliberations comprising part of a process by which governmental
decisions and policies are formulated." NLRB v. Sears, Roebuck &
Co., 421 U.S. at 150, 95 S.Ct. 1504. Accordingly, the exemption
covers drafts, recommendations, proposals, suggestions,
discussions. and other subjective documents that reflect the
consultative process. Coastal States, 617 F.2d at 866.
Here, defendant asserts that the final decisions to which the
deliberative process applies consist of the selection of
companies to accompany the Secretary on trade missions, or policy
decisions concerning advocacy to be undertaken on behalf of U.S.
companies. Having reviewed the documents in camera, in
conjunction with the submitted affidavits and indices, the Court
finds that the defendant's descriptions of the documents to be
accurate and that withholding is therefore proper pursuant to
Exemption 5. For example, defendant asserts the deliberative
process privilege to withhold lists or portions of lists of
companies being considered for participation in trade missions.
Such documents contain notes and comments regarding the proposed
companies, such as whether certain companies advocacy positions
are consistent with the agency's position or agenda or the source
of the recommendation. More importantly, however, these lists, on
their face, clearly demonstrate that they are "predecisional,"
not final. For example, the headings, text, as well as notes and
marginalia, indicate that the companies are merely under
consideration for the trade missions and have not yet been
cleared or "vetted" for the mission. In other instances, the
lists highlight the reasons weighing for or against inclusion of
the company on a trade mission, comments that are clearly within
the scope of the privilege.
In addition to the lists of potential candidates for the
missions, the Court also finds that defendant has properly
withheld memoranda regarding certain companies under
consideration for the trade missions. On their face, these
documents demonstrate their predecisional and deliberative nature
insofar as they address and consider the suitability of certain
companies' advocacy positions for trade missions. In short, they
contain precisely the sort of subjective and frank analysis,
commentary and recommendations that fall squarely within the
protection of the deliberative process privilege. Similarly,
defendant asserts the deliberative process privilege to shield
from disclosure certain intra-agency proposals concerning the DOC
trade missions, including proposed meeting agendas that are
replete with outstanding issues and questions to be considered.
Disclosure of these documents would result in precisely the type
of "fish bowl" effect that the deliberative process privilege is
designed to prevent. See Dow Jones & Co., 917 F.2d at 573.
Finally, the propriety of defendant's Exemption 5 withholdings is
further supported by the ample efforts of defendant to disclose
all reasonably segregable information, including in some
instances, the release of the majority of substantive information
contained in a document.
For the reasons stated above, the court HEREBY GRANTS
defendant's motion for summary judgment with respect to its
Exemption 5 withholdings claimed for documents that were subject
to this Court's December 22, 1999 order.