United States District Court, District of Columbia
N. McFADDEN, U.S.D.J.
Matthew Whitaker was the Attorney General's Chief of
Staff and then the Acting Attorney General, he had to submit
financial disclosure forms with the Office of Government
Ethics. Like those of other executive agency filers,
Whitaker's forms are a matter of public record under the
Ethics in Government Act of 1978. See 5 U.S.C. App.
4 § 105. But Whitaker's forms underwent several
rounds of revision before final approval, and those drafts
were never disclosed. BuzzFeed believes they should be, so it
sued the Department of Justice to force their disclosure
under the Freedom of Information Act.
maintains that all draft versions of Whitaker's forms are
exempt from FOIA release. DOJ claims that the forms are
privileged because they were revised through a
“deliberative process, ” and that they contain
private financial information. After reviewing the
parties' cross-motions for summary judgment, the Court is
unpersuaded by DOJ's “deliberative process”
arguments. More, though the Court agrees that portions of the
forms contain private financial information, some portions
can be released without infringing Whitaker's privacy.
For the following reasons, the Court will grant summary
judgment in part and deny it in part for each party.
early November 2018, Jeff Sessions announced his resignation
as Attorney General of the United States and the President
announced that Matthew Whitaker, then the DOJ Chief of Staff,
would become the Acting Attorney General. Compl. ¶¶
6-9. About two weeks later, DOJ publicly released
Whitaker's New Entrant and Annual Public Financial
Disclosure Reports, submitted on Office of Government Ethics
(“OGE”) Form 278e. Id. ¶ 32. Both
reports were revised five times before they were finished and
made public. Id. ¶ 33. The day after their
public release, a BuzzFeed reporter sent DOJ a FOIA request
for all “original and amended versions” of the
forms from the previous year. Id. ¶ 34. After
some fruitless back-and-forth with DOJ, BuzzFeed filed this
lawsuit seeking the draft reports. See id.
enacted FOIA to promote governmental transparency.
See 5 U.S.C. § 552; Judicial Watch, Inc. v.
U.S. DOD, 913 F.3d 1106, 1108 (D.C. Cir. 2019). FOIA
creates “a statutory right of public access to
documents and records held by federal agencies.”
Stein v. U.S. SEC, 266 F.Supp.3d 326, 335 (D.D.C.
2017) (citation omitted). The Supreme Court has described
FOIA as “a means for citizens to know what their
Government is up to” and “a structural necessity
in a real democracy.” Nat'l Archives &
Records Admin. v. Favish, 541 U.S. 157, 171-72 (2004)
same time, Congress also recognized that “legitimate
governmental and private interests could be harmed by release
of certain types of information, ” FBI v.
Abramson, 456 U.S. 615, 621 (1982), which is why federal
agencies must “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 5 U.S.C. § 552(b). Those nine
exemptions “are explicitly made exclusive and must be
narrowly construed.” Milner v. Dep't of the
Navy, 562 U.S. 562, 565 (2011) (cleaned up).
“vast majority of FOIA cases can be resolved on summary
judgment.” Brayton v. Office of U.S. Trade
Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). Summary
judgment is appropriate where “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); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986).
government agency withholds records, in whole or in part, it
“bears the burden of proving the applicability of
claimed exemptions.” Am. Civ. Liberties Union v.
U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir.
2011). All “underlying facts and the inferences to be
drawn from them are construed in the light most favorable to
the FOIA requester.” Moore v. Aspin, 916
F.Supp. 32, 35 (D.D.C. 1996) (citations omitted). The agency
may submit affidavits or declarations and, if necessary, a
Vaughn Index that lists “in detail which
portions of the documents are disclosable and which are
allegedly exempt.” Vaughn v. Rosen, 848 F.2d
820, 827 (D.C. Cir. 1973).
Court may grant summary judgment “on the basis of
agency affidavits 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.” Aguiar
v. DEA, 865 F.3d 730, 734-35 (D.C. Cir. 2017) (citation
omitted). If the agency's affidavit meets these criteria,
“then summary judgment is warranted on the basis of the
affidavit alone.” Am. Civ. Liberties Union,
628 F.3d at 619 (citation omitted). “Ultimately, an
agency's justification for invoking a FOIA exemption is
sufficient if it appears logical or plausible.”
Id. (cleaned up).
Supreme Court has repeatedly explained “the basic
policy that disclosure, not secrecy, is the dominant
objective” of FOIA. See Dep't of Interior v.
Klamath Water Users Protective Ass'n, 532 U.S. 1, 8
(2001) (quoting Dep't of Air Force v. Rose, 425
U.S. 352, 361 (1976)). “Important interests are served
by [FOIA's] exemptions, ” which are “as much
a part of [its] purposes and policies as the statute's
disclosure requirement.” Food Mktg. Inst. v. Argus
Leader Media, 139 S.Ct. 2356, 2366 (2019) (cleaned up).
But in keeping with FOIA's “goal of broad
disclosure, these exemptions have been consistently given a
narrow compass.” U.S. Dep't of Justice v. Tax
Analysts, 492 U.S. 136, 151 (1989).
only issue here is DOJ's withholding of 14 versions-seven
each of the New Entrant and Annual reports-of Matthew
Whitaker's draft OGE Form 278e. See Def.'s
Mot. for Summ. J. (“Def.'s Mot.”) 6, ECF No.
17-1. DOJ argues that the withholdings are justified under
Exemption 5's deliberative process privilege and
Exemption 6's personal privacy protections. See
id. DOJ also claims it is impossible to segregate exempt
and non-exempt portions of the draft forms “without
revealing the specific items that were changed.”
Id. at 15. BuzzFeed disagrees. See
Pl.'s Cross-Mot. for Summ. J. (“Pl.'s
Cross-Mot.”), ECF No. 18. The Court addresses each
exemption below. Ultimately, the Court agrees in part with
Exemption 5 is Inapplicable Because the Drafts Reveal No. DOJ
5 protects from disclosure “inter-agency or
intra-agency memorandums or letters which 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).
“Exemption 5 incorporates the privileges that the
Government may claim when litigating against a private
party.” Abtew v. U.S. Dep't of Homeland
Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (citation
omitted). In other words, it stands for the idea that
“[t]he public is entitled to all such memoranda or
letters that a private party could discover in litigation
with the agency.” EPA v. Mink, 410 U.S. 73, 86
(1973) (citations omitted).
only Exemption 5 privilege that DOJ claims here is the
deliberative process privilege, see Def.'s Mot.
at 8-11, which 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 (citation
omitted). And the privilege is not strictly limited to
opinions. It is also “broad enough to protect those
facts intertwined with the opinions or tending to reveal the
deliberative process.” Brinton v. Dep't of
State, 636 F.2d 600, 606 (D.C. Cir. 1980).
which are protected by the privilege are those which would
inaccurately reflect or prematurely disclose the views of the
agency, suggesting as agency position that which is as yet
only a personal position.” Coastal States Gas Corp.
v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980). The privilege reflects the policy that
“officials should be judged by what they decided, not
for matters they considered before making up their
minds.” Abtew, 808 F.3d at 898 (citation
omitted). In this way it “protects agencies from being