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Votehemp, Inc. v. Drug Enforcement Administration

June 30, 2006


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


Currently before this Court is the Drug Enforcement Agency's ("DEA") Supplemental Vaughn Index*fn1 ("Supplemental Index") [D.E. # 44] and the Plaintiff's Motion for Entry of Order as to Remaining Documents in Dispute ("Pl.'s Mot.") [D.E. # 50]. This case arises from a Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), request by the plaintiff for the production of six documents pertaining to the DEA's policies and regulations governing the production and use of hemp in the United States. Based on the arguments and submissions presented by the parties, the Court will deny the plaintiff's request for the disclosure of the four documents that remained in dispute following the issuance of the Court's earlier opinion. Memorandum Opinion ("Mem. Op.").


On October 15, 2004, this Court issued a Memorandum Opinion and Order, which granted in part and denied in part, both parties' cross motions for summary judgment filed in relationship to the DEA's refusal to disclose certain documents pertaining to its policies and regulations governing the production and use of hemp in the United States under various FOIA exemptions. Memorandum Opinion ("Mem. Op.") at 1. With respect to six documents - Bates stamped 884*fn2 , 265, 389, 351-53, 386 and 438-51 - the Court was uncertain, based on the descriptions noted in the DEA's original Vaughn Index, whether the DEA was justifiably withholding the documents pursuant to 5 U.S.C. § 552(b)(5) (2000) ("Exemption 5"). Id. at 25-32. The Court therefore requested that the DEA file a supplemental Vaughn Index providing more detailed information as to why these documents should be withheld. Id. On November 17, 2004, the DEA filed its Supplemental Index in response to the Court's instruction, detailing why Exemption 5 applied to each of the above enumerated documents. On June 27, 2005, the plaintiff Votehemp, Inc., filed its Motion for Entry of Order as to Remaining Documents in Dispute, wherein it requested that the Court order disclosure of disputed documents 389, 351-53, 386, and 438-51. Pl.'s Mot. at 1. Later, on July 11, 2005, the DEA filed its Memorandum Opposing Plaintiff's Motion for Final Judgment ("Defs.' Opp'n"), wherein it supplemented the positions advanced in its Supplemental Index.*fn3 Defs.' Opp'n. The DEA also submitted documents 351-53, 386, and 438-51 to the Court for its in camera review.

II. Standard of Review

1. Exemption 5 of the FOIA

Exemption 5 provides that the "inter-agency or intra-agency memorand[a] or letters which would not be available by law to a party other than an agency in litigation with the agency" are not subject to disclosure. 5 U.S.C. § 552 (b)(5). "To qualify [for non-disclosure under Exemption 5], a document must thus satisfy two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it." Dep't of Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). The threshold issue that must be addressed when Exemption 5 is asserted is whether the records in question qualify as "inter-agency or intra-agency memorand[a]." Judicial Watch, Inc. v. Dep't of Commerce, 90 F. Supp. 2d 9, 13 (D.D.C. 2000).

"With respect to the secondary consideration under Exemption 5 - whether such materials would not be 'available by law in litigation with the agency,'" id., "the parameters of Exemption 5 are determined by reference to the protections available to litigants in civil discovery . . . ." Burka v. Dep't of Health & Human Servs., 87 F.3d 508, 516 (D.C. Cir. 1996). Thus, if a document requested pursuant to the FOIA would normally be subject to disclosure in the civil discovery context, it must also be disclosed under the FOIA. Id. Conversely, information that is routinely not subject to disclosure in the civil discovery process is exempt from disclosure under Exemption 5. Id. Moreover, "to justify non-disclosure under Exemption 5, an agency must show that the type of material it seeks to withhold is generally protected in civil discovery for reasons similar to those asserted by the agency in the FOIA context." Id. at 517. Thus, courts have incorporated three traditional civil discovery privileges into Exemption 5: (1) the deliberative process privilege; (2) the attorney-client privilege; and (3) the attorney work-product privilege. NLRB v. Sears, Roebuck, & Co., 421 U.S. 132, 148-49 (1975); Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 862, 866 (D.C. Cir. 1980). Only the first two privileges are asserted by the defendants.

A. The Deliberative Process Privilege

The deliberative process privilege protects from disclosure "documents reflecting advisory opinions, recommendations and deliberations that are part of a process by which [governmental] decisions and policies are formulated." Klamath, 532 U.S. at 8. The purpose of the deliberative process privilege is to ensure open communication between subordinates and superiors, prevent premature disclosure of policies before final adoption, and to avoid public confusion if grounds for policies that were not part of the final adopted agency policy happened to be exposed to the public. Defenders of Wildlife v. Dep't of Agric., 311 F. Supp. 2d 44, 57 (D.D.C. 2004) (citations omitted). Thus, when a court reviews whether an agency properly withheld documents under the deliberative process privilege, the critical question to ask is whether "disclosure of [the] materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Formaldehyde Instit. v. Dep't of Health and Human Servs., 889 F.2d 1118, 1121-22 (D.C. Cir. 1989); see also Sears, 421 U.S. at 151 (noting that the main purpose of the deliberative process privilege is to "prevent injury to the quality of agency decisions").

To be exempt from disclosure under the deliberative process privilege, the agency must show that its decision is both (1) predecisional and (2) deliberative. Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002). "A document is predecisional if it was 'prepared in order to assist an agency decisionmaker in arriving at his decision', rather than to support a decision already made." Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (quoting Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975)). The preparation of the document must therefore be "[a]ntecedent to the adoption of an agency policy." Jordan v. Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978). However, a document cannot be characterized as predecisional "if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Coastal States, 617 F.2d at 866. Examples of predecisional documents include "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Id.

A document is deliberative if the "materials . . . bear on the formulation or exercise of agency policy-oriented judgment." Petroleum Info. Corp., 976 F.2d at 1435. The information may be "a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." Vaughn, 523 F.2d at 1144. The information may also concern "factual summaries that were written to assist [in] the making of a discretionary decision." Mapother v. Dep't of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993). Most importantly, the document must reflect the "give-and-take of the consultative process." Senate of Puerto Rico v. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987). Other factors bear on whether a document is sufficiently deliberative. See Animal Legal Def. Fund, Inc. v. Dep't of the Air Force, 44 F. Supp. 2d 295, 300 (D.D.C. 1999). For example, in determining whether the deliberative process privilege should apply to a particular document, courts often look at "the 'nature of the decisionmaking authority vested in the officer or person issuing the disputed document', and the relative positions in the agency's 'chain of command' occupied by the document's author and recipient." Id. (quoting Puerto Rico, 823 F.2d at 586). Although there are many cases in this Circuit which discuss the deliberative process privilege, these cases "are of limited help . . . because the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process." Coastal States, 617 F.2d at 867.

B. The Attorney-Client Privilege

The attorney-client "privilege has a proper role to play in exemption five cases . . . ." In re Lindsey, 158 F.3d 1263, 1269 (D.C. Cir. 1998). Aside from the protections provided by the attorney-client privilege in the private sector, "the privilege also functions to protect communications between government attorneys and client agencies or departments, as evidenced by its inclusion in the FOIA, much as it operates to protect attorney-client communications in the private sector." Id. Thus, when "the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, [and] needs the same assurance of ...

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