The opinion of the court was delivered by: James Robertson United States District Judge
At bottom, this extended Freedom of Information Act (FOIA) dispute is about the scope of what might be called the "misconduct exception" to FOIA's deliberative process privilege. FOIA exempts from disclosure those "inter-agency or intra-agency memorandums or letters which 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). The courts have long recognized that this provision contemplates a privilege for documents reflecting the "agency give-and-take" which precedes a final decision on agency policy. Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149-153 (1975). Controlling precedent in this Circuit holds, however, that the deliberative process privilege "disappears altogether when there is any reason to believe government misconduct occurred." In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). The question is how far this exception extends -- whether any action beyond the direct regulatory authority of the agency will suffice, or whether something more nefarious must be afoot before the deliberative process privilege "disappears." In this case, because the privilege broader -- and the exception narrower -- than the plaintiff submits, the defendant's motion for summary judgment will be granted.
Before me are cross-motions for summary judgment. The parties first crossed motions in the Fall of 2006. I denied the government's motion to dismiss, but granted its motion for summary judgment in part -- finding that certain documents had been lawfully withheld but that further explanation would be required to determine whether the remaining documents should be released. See . The government has now filed a supplemental Vaughn index and moved again for summary judgment.
ICM is a technology company that developed a plan to add a .xxx domain to the global Internet as a way of promoting self-regulation by the adult entertainment industry. It submitted an application for a new .xxx "sponsored top-level domain" to the Internet Corporation for Assigned Names and Numbers. After an extended back and forth, the ICANN Board determined that the .xxx application met all eligibility criteria for sponsored domains and authorized ICANN staff to initiate contract negotiations with ICM. Negotiations proceeded, but the Board eventually rejected the application. ICM submits that the United States Government, through the Departments of State and Commerce and Commerce's National Telecommunications and Information Administration, intervened behind the scenes to urge ICANN to reject the application, responding to pressure from well-connected and socially conservative groups such as James Dobson's Focus on the Family.
ICM submitted FOIA requests to State and Commerce in an effort to ascertain their involvement with the rejection of its .xxx application. The departments released many documents, but withheld or redacted others as within the deliberative process privilege.
The public policies that support FOIA's deliberative process privilege have been succinctly summarized by the Court of Appeals:
First, [the privilege] protects creative debate and candid consideration of alternatives within an agency and, thereby, improves the quality of agency policy decisions. Second, it protects the public from the confusion that would result from premature exposure to discussion occurring before the policies affecting it had actually been settled upon. And third, it protects the integrity of the decision-making process itself by confirming that officials should be judged by what they decided, not for matters they considered before making up their minds.
Jordan v. Dept. of Justice, 591 F.2d 753, 772-773 (D.C. Cir. 1978) (en banc), overruled on other grounds by Crooker v. ATF, 670 F.2d 1051 (D.C. Cir. 1981).
Two conditions must be met before the privilege will be applied. First, the disclosed information must actually have been predecisional in the sense of being prior in time to the final decision on agency policy. Second, the ideas or opinions expressed must actually have been deliberative in the sense of contributing to the "give and take of the consultative process." Coastal States Gas Corp. v. Dept. of Energy, 617 f2d 854, 866 (D.C. Cir. 1980); see also Vaughn, 523 F.2d at 1144. Thus, the privilege protects "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency," Coastal States, 617 F.2d at 866, so long as those recommendations, et cetera, actually predate the relevant agency decision.
The so-called misconduct exception to the deliberative process privilege is a less well-settled doctrine. Circuit courts have acknowledged, in dicta, that the deliberative process privilege does not apply where there is reason to suspect government misconduct, but this exception to the (b)(5) exemption has never been applied in a holding at the Circuit level, nor has the scope of "misconduct" been clearly defined. See, e.g, Enviro Tech Int'l, Inc. v. EPA, 371 F.3d 370 (7th Cir. 2004); Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145 F.3d 1422 (D.C. Cir. 1998); In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997). In this court, the deliberative process privilege has been disregarded in circumstances of extreme government wrongdoing. See, e.g., Alexander v. FBI, 186 F.R.D. 154, 164 (D.D.C. 1999) (no privilege where documents related to misuse of a government personnel file to discredit a witness in an ongoing investigation of Clinton administration); Tax Reform Research Group v. Internal Revenue Service, 419 F. Supp. 415, 426 (D.D.C. 1976) (no privilege where documents concerned recommendation to use the powers of the IRS in a discriminatory fashion against "enemies" of the Nixon administration).
ICM submits here that the misconduct exception prevents the government from using the deliberative process privilege unless it can point to a legitimate policy decision that it could have reached with respect to the topic at issue -- in this case, the approval of a .xxx domain. Because the role of the United States with respect to the addition of new domains to the Internet is ministerial -- NTIA merely follows the recommendations of ICANN -- ICM believes that the government can point to no legitimate policy that it could have been deliberating with respect to .xxx, and so the deliberative process privilege should not apply.*fn1 The government notes that doctrine does not require it to relate a document to a particular decision that was being deliberated, see, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n.18 (1975); Balderrama v. Dep't of Homeland Security, 2006 U.S. Dist. LEXIS 19421 at *22 (D.D.C. 2006), and it argues that because Internet policy is within the general area of responsibility of both NTIA and the State Department, it was proper for those departments to deliberate possible public responses if ICANN approved the .xxx domain.
Whatever the boundaries of the misconduct exception, they cannot be as expansive as ICM declares them to be. The exception runs counter to the purposes that animate the deliberative process privilege, and it thus makes sense to apply it narrowly. If every hint of marginal misconduct sufficed to erase the privilege, the exception would swallow the rule. In the rare cases that have actually applied the exception, the "policy discussions" sought to be protected with the deliberative process privilege were so out of bounds that merely discussing them was evidence of a serious breach of the responsibilities ...