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American Center For Law And Justice v. United States Department of Justice

United States District Court, District of Columbia

June 30, 2018




         In this 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 “talking points” 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.

         Upon 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.

         I. Background

         ACLJ 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. Id.

         Over 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.

         The 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.

         II. Legal Standard

         Federal 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. 2011).

“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. 1984)).

         FOIA 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.

         III. Analysis

         In its 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 ...

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