United States District Court, District of Columbia
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE
action brought under the Freedom of Information Act, American
Center for Law and Justice (ACLJ) seeks records from the
Department of Justice relating to a June 2016 meeting between
then-Attorney General Loretta Lynch and former President Bill
Clinton that took place on an airplane in Arizona. The
parties' dispute centers on redactions made to documents
discussing how to handle press inquiries about the meeting,
and in particular the Department's withholding of
âtalking pointsâ prepared for Attorney General Lynch. The
parties previously cross-moved for summary judgment, and the
Court granted judgment for the Department on all documents
except two for which the Court determined it lacked
sufficient context. The Court ordered the parties to file
renewed motions for summary judgment on those documents.
review of those new submissions, and for largely the same
reasons described in its prior opinion, the Court will grant
the Department's motion, deny ACLJ's cross-motion,
and enter judgment for the Department.
submitted its request at issue here under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, in July 2016.
ACLJ v. U.S. Dep't of Justice, 325 F.Supp.3d
162, 165 (D.D.C. 2018). The request sought various categories
of documents relating to a meeting that, according to
ACLJ's complaint, occurred between Attorney General Lynch
and President Clinton on an airplane parked on the tarmac at
an airport in Phoenix, Arizona, on June 27, 2016.
Id. After the Department had not responded for
several months, ACLJ commenced this action in November 2016.
the course of about a year, the Department made several
productions of responsive documents, withholding some
documents in whole or in part under FOIA's enumerated
exemptions. Id. at 165-66. After trying to narrow
the areas of disagreement, the parties filed cross-motions
for summary judgment. Id. at 166. In addition to
other disputes not relevant here, ACLJ challenged the
Department's withholding of records under FOIA's
Exemption 5 and the deliberative-process privilege. See 5
U.S.C. § 552(b)(5); see also ACLJ, 325 F.Supp.3d at 166.
And to the extent that the Department properly withheld those
records, ACLJ challenged the Department's compliance with
FOIA's segregability requirement. ACLJ, 325 F.Supp.3d at
175. The records in question all concerned Department
discussions about how to handle press inquiries about the
airplane meeting. Id. at 171.
Court granted summary judgment for the Department in part. It
concluded that the Department properly withheld in whole or
in part nine of the disputed documents under FOIA's
exemption for materials covered by the deliberative-process
privilege. Id. at 171-74. And it further found that
the Department had met its burden to show that it had
withheld no segregable material from those redacted
documents. Id. at 175-76. As to the two remaining
documents, however-(1) an attachment titled “Top Line
TPs (Final)” to an email dated July 11, 2016, ECF No.
25-2 at 20-23, and (2) a separate email chain dated June 30,
2016, ECF No. 25-2 at 14-15- the Court determined that it
lacked sufficient context to evaluate whether the privilege
applied. See ACLJ, 325 F.Supp.3d at 174-75 (noting
that the Court had “no basis to assess whom the talking
points were drafted for, how they were used, or what their
subject matter was”). The Court thus denied both
parties' motions as to those two documents and instructed
the Department to file a renewed motion and supplemental
declaration. Id. at 176. The Department did so in
October 2018, see ECF No. 30, and ACLJ filed its
cross-motion and opposition later that month, see ECF No. 31.
Rule of Civil Procedure 56 provides that a court “shall
grant 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). In determining whether a genuine dispute of material
fact exists, the reviewing court must “view the
evidence in the light most favorable to the non-movants and
draw all reasonable inferences accordingly.”
Lopez v. Council on Am.-Islamic Relations Action
Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).
“[T]he vast majority of FOIA cases can be resolved on
summary judgment . . . .” Brayton v. Office of the
U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir.
“FOIA ‘mandates that an agency disclose records
on request, unless they fall within one of nine
exemptions.'” Elec. Privacy Info. Ctr. v. U.S.
Dep't of Homeland Sec. (EPIC), 777 F.3d 518, 522
(D.C. Cir. 2015) (quoting Milner v. Dep't of the
Navy, 562 U.S. 562, 564 (2011)); see also 5
U.S.C. § 552(b)(1)-(9). When an agency invokes one of
those exemptions, the “burden is on the agency to
justify withholding the requested documents, and . . . FOIA
directs district courts to determine de novo whether
non-disclosure was permissible.” EPIC, 777
F.3d at 522. Typically, an agency will defend its
withholdings through affidavits describing the documents in
question. “Summary judgment is warranted on the basis
of agency affidavits when the affidavits describe the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted
by either contrary evidence in the record nor by evidence of
agency bad faith.” Larson v. Dep 't of
State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting
Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir.
also requires that “[a]ny reasonably segregable portion
of a record shall be provided to any person requesting such
record after deletion of the portions which are
exempt.” 5 U.S.C. § 552(b). “Before
approving the application of a FOIA exemption, the district
court must make specific findings of segregability regarding
the documents to be withheld.” Sussman v. U.S.
Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007).
That said, “[a]gencies are entitled to a presumption
that they complied with the obligation to disclose reasonably
segregable material.” Id. at 1117.
renewed motion, the Department represents that it voluntarily
released the June 30 email chain to ACLJ. See ECF
No. 30-1 (“Def.'s MSJ Br.”) at 1; ECF No.
30-3 (“Brinkmann Decl.”) ¶ 6. Thus, the only
document still at issue is the withheld attachment to the
July 11 email, titled “Top Line TPs (Final).”
See ECF No. 25-2 at 20-23. The Department withheld
the attachment under Exemption 5 and the deliberative-process
privilege, explaining that it consists of three pages of
talking points prepared for Attorney General Lynch, and it
maintains that it contains no non-deliberative portion that
could reasonably be ...