United States District Court, District of Columbia
B. WALTON UNITED STATES DISTRICT JUDGE.
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
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,
Court concludes that it must grant in part and deny in part
the defendants' motion.
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. 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.
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
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.
STANDARD OF REVIEW
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).
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)).
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. 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
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.
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)).
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 ...