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Judicial Watch, Inc. v. U.S. Department of Justice

United States District Court, District of Columbia

September 24, 2019

JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF JUSTICE, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, United States District Judge.

         This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiff Judicial Watch, Inc. made to Defendant United States Department of Justice (“DOJ”) in 2017. Judicial Watch requested emails sent from or received by Acting Attorney General Sally Yates from January 21, 2017 through January 31, 2017. After Judicial Watch subsequently filed suit, DOJ produced all responsive and non-exempt records. Pending before the Court are DOJ’s Motion for Summary Judgment, ECF No. 18, and Judicial Watch’s Cross-Motion for Summary Judgment, ECF No. 21.

         DOJ argues that its withholdings are appropriate under FOIA Exemption 5, which 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.” 5 U.S.C. § 552(b)(5). Judicial Watch contends both that Exemption 5 does not apply to certain withholdings and that DOJ has failed to specify any specific harms to protected interests that DOJ reasonably foresees will result if these withholdings are disclosed. See Id . § 552(a)(8)(A)(i).

         The Court agrees that DOJ has failed to identify specific reasonably foreseeable harms that would result from disclosure as required under the FOIA Improvement Act of 2016. Although the Court does not consider each withholding in depth, it also finds lacking the information provided by DOJ as to the basis for withholding the summaries in Document 5276-1. Accordingly, upon consideration of the briefing, [1] the relevant legal authorities, and the record as it currently stands, the Court DENIES WITHOUT PREJUDICE DOJ’s Motion for Summary Judgment and HOLDS IN ABEYANCE Judicial Watch’s Cross-Motion for Summary Judgment. The Court shall allow DOJ an opportunity to submit another Motion for Summary Judgment, along with any supporting affidavits and an amended Vaughn index, addressing the deficiencies that the Court identifies below.

         I. BACKGROUND

         On February 1, 2017, Judicial Watch made a FOIA request for emails received by or sent from the DOJ email account used by former Acting Attorney General Sally Yates from January 21, 2017 through January 31, 2017. Stmt. of Material Facts, ECF No. 18-2, ¶ 1. DOJ acknowledged receipt, and when DOJ failed to produce responsive records, Judicial Watch filed suit on May 5, 2017, to obtain them. Id. ¶¶ 2–3. DOJ produced responsive records in two productions on October 24, 2017 and November 24, 2017 and a supplemental production on March 30, 2018. Id. ¶ 5.

         DOJ withheld certain documents, claiming that they qualified for either the deliberative process privilege or attorney work product privilege under FOIA Exemption 5. Id. ¶ 6. These documents include intra-agency discussions of press inquiries and reports related to Executive Order 13, 679; intra-agency discussions about communications and decision-making processes; drafts of the memorandum that Yates issued on January 30, 2017 regarding Executive Order 13, 679; a draft of a memorandum never issued by Yates; an email listing the attendees of a DOJ meeting; and a chart with summaries of recent or expected developments in certain litigation. Decl. of Vanessa R. Brinkmann (“Brinkmann Decl.”), ECF No. 19, ¶¶ 12(a), 12(d), 12(f)–(g), 12(i). Judicial Watch disagrees with DOJ’s invocation of Exemption 5 as to these documents and further contends that DOJ has failed to articulate specific reasonably foreseeable harms that would occur as a result of disclosure for each category of withholdings.

         II. LEGAL STANDARD

         Congress passed FOIA to “‘open[] up the workings of government to public scrutiny’ through the disclosure of government records.” Stern v. Fed. Bureau of Investigation, 737 F.2d 84, 88 (D.C. Cir. 1984) (quoting McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1108 (D.C. Cir. 1983)). Congress, however, also recognized “that there are some government records for which public disclosure would be so intrusive-either to private parties or to certain important government functions-that FOIA disclosure would be inappropriate.” Id. To that end, FOIA “mandates that an agency disclose records on request, unless they fall within one of nine exemptions.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011). Despite these exemptions, “disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). The exemptions are therefore “‘explicitly made exclusive’ and must be ‘narrowly construed.’” Milner, 562 U.S. at 565 (citations omitted) (quoting Envtl. Prot. Agency v. Mink, 410 U.S. 73, 79 (1973); Fed. Bureau of Investigation v. Abramson, 456 U.S. 615, 630 (1982)).

         When presented with a motion for summary judgment in this context, the court must conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). This requires the court to “ascertain whether the agency has sustained its burden of demonstrating the documents requested are . . . exempt from disclosure under the FOIA.” Multi Ag Media LLC v. Dep’t of Agric., 515 F.3d 1224, 1227 (D.C. Cir. 2008) (internal quotation marks omitted). “An agency may sustain its burden by means of affidavits, but only ‘if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.’” Id. at 1227 (quoting Gallant v. Nat’l Labor Relations Bd., 26 F.3d 168, 171 (D.C. Cir. 1994)). “If an agency’s affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). “Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011).

         Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations “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).

         III. DISCUSSION

         Judicial Watch has challenged DOJ’s withholdings on two main bases: (1) that DOJ has failed to meet its burden of proof to detail the reasonably foreseeable harms that would occur as a result of disclosure and (2) that these withholdings were not proper pursuant to Exemption 5. The Court will first consider whether DOJ has met its burden to provide specific foreseeable harms for each category of withholdings before turning to whether DOJ has provided sufficient information as to the summaries withheld in Document 5276-1 in particular.

         As the Court concludes that DOJ has not met its burden with respect to the requirements of the FOIA Improvement Act of 2016, the Court does not reach the question of whether any withholdings were ultimately proper under FOIA Exemption 5. The Court further finds that DOJ has not met its burden to provide sufficient information regarding the summaries withheld in Document 5276-1.

         A. DOJ has not provided specific reasonably foreseeable harms that would occur as a result of disclosure for all its withholdings.

         Congress passed the FOIA Improvement Act of 2016 both to address a “growing backlog” of FOIA requests and out of concern that “agencies [we]re overusing FOIA exemptions that allow, but do not require, information to be withheld from disclosure.” S. Rep. No. 114-4 (2016), as reprinted in 2016 U.S.C.C.A.N. 321, 322. Senate Report 114-4 discussed in particular the “growing and troubling trend towards relying on these discretionary exemptions”-especially Exemption 5-“to withhold large swaths of Government information, even though no harm would result from disclosure.” Id. at 323.

         The Act therefore provided for a “presumption of openness” for FOIA requests and “mandate[d] that an agency may withhold information only if it reasonably foresees a specific identifiable harm to an interest protected by an exemption, or if disclosure is prohibited by law.” Id. at 324. In particular, it was contemplated that information should “not be withheld ‘merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.’” Id. (quoting President Barack Obama, Memorandum for the Heads of Executive Departments and Agencies, Subject: Freedom of Information Act (Jan. 21, 2009)).

         To that end, the FOIA Improvement Act provided that “[a]n agency shall withhold information” under the discretionary FOIA exemptions, including Exemption 5, “only if the agency reasonably foresees that disclosure would harm an interest protected by” a discretionary exemption or if “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). “Stated differently, pursuant to the FOIA Improvement Act, an agency must release a record-even if it falls within a FOIA exemption-if releasing the record would not reasonably harm an exemption-protected interest and if its disclosure is not prohibited by law.” Rosenberg v. U.S. Dep’t of Def., 342 F.Supp.3d 62, 73 (D.D.C. 2018).

         While there are few cases interpreting the Act’s requirements, two courts in this Circuit have considered the Act in some depth. In Rosenberg v. U.S. Department of Defense, the court examined persuasive authority and the text of the Act itself to find that the agency was required to “explain how a particular Exemption 5 withholding would harm the agency’s deliberative process.” Id. at 78. While the agency could “take a categorical approach-that is, group together like records, ” it still had to “explain the foreseeable harm of disclosure for each category.” Id. The court ultimately found that the agency’s statement that disclosure of the information withheld would “impede open discussion on these issues” was insufficient. See Id . at 77–78; see also Ecological Rights Found. v. Fed. Emergency Mgmt. Agency, No. 16-cv-05254-MEJ, 2017 WL 5972702, at *6 (N.D. Cal. Nov. 30, 2017) (finding that because agency did not ‚Äúprovide basic information about the deliberative process at issue and the role played by each ...


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