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The James Madison Project v. Department of Justice

United States District Court, District of Columbia

March 26, 2018

DEPARTMENT OF JUSTICE, et al., Defendants.



         The plaintiffs, The James Madison Project and Ken Dilanian, brought this Freedom of Information Act (“FOIA”) action against the defendants, the United States “Department of Justice [(the ‘Department')], [the United States] Department of Defense, [the] Central Intelligence Agency [(‘CIA'), ] and the Office of the Director of National Intelligence [(the ‘Director')], (as well as their subordinate entities)” because of the defendants' allegedly improper withholding of the documents sought in their FOIA requests. Second Amended Complaint (“Compl.”) at 2.[1] Currently before the Court is the Defendants' Motion for Partial Summary Judgment (“Defs.' Mot.”), which seeks summary judgment on the CIA's, the Executive Office's, and the Director's responses to the plaintiffs' FOIA requests. See Defs.' Mot. at 1. Upon consideration of the parties' submissions, [2] the Court concludes that it must grant in part and deny in part the defendants' motion.

         I. BACKGROUND

         The undisputed facts relevant to the defendants' motion are the following. See generally Pls.' Facts (not disputing any the defendants' facts). On December 10, 2015, the plaintiffs submitted a FOIA request to the Director, see Defs.' Facts ¶ 27, seeking “copies of all [of the Director's] records pertaining to [Thomas Andrews] Drake from January 1, 2000, to December 31, 2011, ” id. ¶ 28. Specifically, the plaintiffs sought all records concerning “the criminal/intelligence investigation into [the] activities” of Drake, who was a “former NSA employee.” Compl. ¶ 9.[3] The Director “reasonably determined” that its “Office of General Counsel, [ ] Office of the Intelligence Community Inspector General, and [ ] National Counterintelligence and Security Center” would “potentially have documents responsive to [the p]laintiffs' FOIA request[].” Defs.' Facts ¶ 29. The Director therefore instructed those offices to “conduct[] systematic searches of both their physical and electronic records” for potentially responsive documents. Id. ¶ 30. “Only the Office of the General Counsel identified any potentially responsive records, which were then reviewed by the [Director's] Information Management Division [ ] to determine whether these documents were actually responsive to [the p]laintiffs' FOIA request.” Id. ¶ 32.

         Based on its review of the potentially responsive documents that were located, the Director “identified four documents, which it ha[d] designated [as] Documents A, B, C, and D, as responsive to [the p]laintiffs' FOIA request.” Id. ¶ 33. On July 28, 2016, the Director “released a redacted version of Document A, an e-mail thread, ” id. ¶ 35, and on October 3, 2016, the Director “released redacted versions of Documents B and C, both also e-mail threads, ” id. ¶ 36. The Director redacted information from Documents A, B, and C pursuant to several FOIA exemptions. See id. ¶¶ 38-39. The Director “referred Document D to the NSA for review and direct release to [the p]laintiffs, ” id. ¶ 34, and this document is not a subject of this memorandum opinion.

         The plaintiffs' Second Amended Complaint asserts eleven separate causes of actions. See generally Compl. Through their motion, the defendants seek summary judgment only as to counts three, ten, and eleven. See Defs.' Mot. at 1; see also Compl. ¶¶ 23-29, 63-72. The plaintiffs now challenge only the Director's redactions of Documents A and B pursuant to the deliberative process privilege of FOIA Exemption 5, see Pls.' Opp'n at 1, 5, which relates to count eleven of the plaintiffs' Second Amended Complaint, see Compl. ¶¶ 68-72.


         The Court must grant a motion for summary judgment “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). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials.” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980)). If the Court concludes that “the nonmoving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof, ” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         “FOIA cases typically are resolved on a motion for summary judgment.” Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d 109, 116 (D.D.C. 2014); see also Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). “[The] FOIA requires federal agencies to disclose, upon request, broad classes of agency records unless the records are covered by the statute's exemptions.” Students Against Genocide v. U.S. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001). In a FOIA action, the defendant agency has “[the] burden of demonstrating that the withheld documents are exempt from disclosure.” Boyd v. U.S. Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007) (citation omitted). The Court will grant summary judgment to the government in a FOIA case only if the agency can prove “that it has fully discharged its obligations under the FOIA, after the underlying facts and the inferences to be drawn from them are construed in the light most favorable to the FOIA requester.” Friends of Blackwater v. U.S. Dep't of Interior, 391 F.Supp.2d 115, 119 (D.D.C. 2005) (quoting Greenberg v. U.S. Dep't of Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). Thus, in a lawsuit brought to compel the production of documents under the FOIA, “an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates ‘that each document that falls within the class requested either has been produced . . . or is wholly[, or partially, ] exempt [from disclosure].'” Students Against Genocide, 257 F.3d at 833 (omission in original) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)).

         III. ANALYSIS

         The issue before the Court in this case is whether the Director properly withheld information from Documents A and B pursuant to Exemption 5 of the FOIA. See Pls.' Opp'n at 5.[4] The plaintiffs contend that the Director's “categorical nature of the redactions” to Document A makes “it [ ] virtually impossible to ascertain the actual context of the discussion” in that document. Id. at 5-6; see also id. at 5 (stating that the Director asserts that the redacted “information merely consists of discussions about, as well as assessments and characterizations of, the case against [ ] Drake”). The plaintiffs also argue that the Director's description of the redactions to Document B “raises questions that are not resolved by [the Director's] affidavit, ” particularly whether the redacted language “qualif[ies] as ‘working law' information that falls outside the scope of Exemption 5 protection.” Id. at 7.[5]

         FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorand[a] 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) (2012). “Exemption 5 incorporates the privileges that the [g]overnment may claim when litigating against a private party, including the governmental attorney-client and attorney work product privileges, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege.” Abtew v. U.S. Dep't of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015).

         Here, the Director invokes the deliberative process privilege, which “rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001). “The privilege serves to preserve the ‘open and frank discussion' necessary for effective agency decisionmaking[, and it] protects ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'” Abtew, 808 F.3d at 898 (first quoting Klamath Water Users Protective Ass'n, 532 U.S. at 9; then quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).

         “To be exempt from disclosure under the deliberative process privilege, the agency must show that the information is both (1) ‘predecisional' and (2) ‘deliberative.'” Cleveland v. U.S. Dep't of State, 128 F.Supp.3d 284, 298 (D.D.C. 2015) (Walton, J.) (quoting 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. U.S. 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)); see also Senate of P.R. v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (“A document is ‘predecisional' if it precedes, in temporal sequence, the ‘decision' to which it relates.”). “And a document is deliberative if it is ‘a part of the agency give-and-take- of the deliberative process-by which the decision itself is made.” Abtew, 808 F.3d at 899 (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)); see also Pub. Emps. for Envtl. Responsibility v. EPA, 213 ...

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