United States District Court, District of Columbia
N. MCFADDEN, U.S.D.J.
Electronic Privacy Information Center, or EPIC, claims a
right under the Freedom of Information Act to records from
the Department of Justice about evidence-based assessment
tools that seek to predict the statistical probability of an
individual's recidivism. The Department has identified
relevant records in its possession but has withheld many
records in whole or in part, either as private personal
information or as information protected by the presidential
communications and deliberative process privileges. Because
the Department has justified each of the withholdings that
EPIC challenges, the Department's Motion for Summary
Judgment will be granted and EPIC's Cross-Motion for
Summary Judgment will be denied.
Freedom of Information Act, or FOIA, request seeks five
categories of records related to evidence-based assessment
tools, which can also be described as risk assessment tools:
1. All validation studies for risk assessment tools
considered for use in sentencing, including but not limited
to, COMPAS, LSI-R, and PCRA.
2. All documents pertaining to inquiries for the need of
validation studies or general follow up regarding the
predictive success of risk assessment tools.
3. All documents, including but not limited to, policies,
guidelines, and memos pertaining to the use of evidence-based
4. Purchase/sales contracts between risk-assessment tool
companies, included [sic] but not limited to, LSI-R and the
5. Source codes for risk assessment tools used by the federal
government in pre-trial, parole, and sentencing, from PCRA,
COMPAS, LSI-R, and any other tools used.
Compl. ¶ 14.
Department of Justice identified and produced 359 pages of
records, with some redactions on 128 of those pages to
protect privileged information under FOIA Exemption 5 and
private personal information under FOIA Exemption 6. Decl. of
Vanessa R. Brinkmann ISO Def.'s Mot. Summary J.
(Brinkmann Decl.) ¶¶ 8, 14. The Department withheld
2, 363 pages in full under Exemption 5, claiming that the
records enjoy the presidential communications privilege and
the deliberative process privilege. Id. ¶ 14.
One of the key withholdings is a document that the Department
describes as a Predictive Analytics Report prepared for
submission to the White House. Id. ¶ 12. This
report was prepared “at the direction of the White
House” after a 2014 White House report that tasked
President Barack Obama's senior advisors with leading a
comprehensive review of the effect of big data technologies,
including the use of predictive analytics in law enforcement.
Id. ¶¶ 10-11. The Department also withheld
drafts, research, briefing material, and emails related to
the Report. Id. ¶ 15. EPIC sued to challenge
several of these withholdings. Now before the Court are
Cross-Motions for Summary Judgment.
prevail on a motion for summary judgment, a movant must show
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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986);
Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986).
FOIA requires federal agencies to “disclose information
to the public upon reasonable request unless the records at
issue fall within specifically delineated exemptions.”
Judicial Watch, Inc. v. FBI, 522 F.3d 364, 365-66
(D.C. Cir. 2008); see also 5 U.S.C. §
552(a)(3)(A) (records sought must be “reasonably
describe[d]”). Thus, a FOIA defendant is entitled to
summary judgment if it shows that there is no genuine dispute
about whether “each document that falls within the
class requested either has been produced, is unidentifiable
or is wholly exempt from the Act's inspection
requirements.” See Weisberg v. Dep't of
Justice, 627 F.2d 365, 368 (D.C. Cir. 1980).
that any unproduced documents are exempt from FOIA, an agency
may file “affidavits describing the material withheld
and the manner in which it falls within the exemption
claimed.” King v. Dep't of Justice, 830
F.2d 210, 217 (D.C. Cir. 1987). An agency affidavit that
addresses these points with “reasonably specific
detail” provides sufficient grounds for summary
judgment unless it is “controverted by either contrary
evidence in the record [or] by evidence of agency bad
faith.” Military Audit Project v. Casey, 656
F.2d 724, 738 (D.C. Cir. 1981); see also SafeCard Servs.
Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991)
(giving agency declarations “a presumption of good
faith, which cannot be rebutted by purely speculative
claims”). Courts review the applicability of FOIA
exemptions de novo. King, 830 F.2d at 217.
Courts decide the “vast majority” of FOIA cases
on motions for summary judgment. See Brayton v. Office of
United States Trade Rep., 641 F.3d 521, 527 (D.C. Cir.
Exemption 5 protects “inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with the agency,
provided that the deliberative process privilege shall not
apply to records created 25 years or more before the date on
which the records were requested.” 5 U.S.C. §
552(b)(5). Exemption 5 has been interpreted to include
materials subject to the presidential communications
privilege as well as ...