Judicial Watch, Inc. v. DOD

Filing

OPINION [1659790] filed (Pages: 9) for the Court by Judge Pillard. [16-5054]

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 10, 2016

Decided February 7, 2017

No. 16-5054
JUDICIAL WATCH, INC.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF DEFENSE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-01935)
Jason B. Aldrich argued the cause for appellant. With him
on the briefs was Paul J. Orfanedes.
August E. Flentje, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Matthew Collette, Attorney.
Before: HENDERSON and PILLARD, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.

Page 1 of 9

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

2
PILLARD, Circuit Judge: Judicial Watch, Inc. (Judicial
Watch) brought this action against the United States
Department of Defense (DOD or the Department), alleging that
the Department violated its obligations under the Freedom of
Information Act (FOIA), 5 U.S.C. § 552, when it failed to
release copies of documents embodying the Secretary of
Defense’s 2014 determination that five Guantanamo Bay
detainees could be transferred to Qatar. The Department
moved for summary judgment. Judicial Watch acknowledged
that the Department had produced one document, but opposed
summary judgment on the ground that it continued to withhold
a second document to which Judicial Watch believed it was
entitled: a memo from Assistant Secretary of Defense Michael
Lumpkin to Secretary of Defense Chuck Hagel. The
Department claimed that it had no obligation to produce that
memo because it was a privileged deliberative document. The
district court agreed and entered judgment in DOD’s favor.
Judicial Watch appealed. Because the district court correctly
determined that the memo was privileged, we affirm.
I.
The National Defense Authorization Act for Fiscal Year
2014 (NDAA) provides that the Secretary of Defense may
transfer a prisoner held at Guantanamo Bay to the individual’s
country of origin, or any other foreign country, if so directed
by a competent tribunal or if the Secretary “determines” that
the prisoner is “no longer a threat to the national security of the
United States.” NDAA, Pub. L. No. 113-66, § 1035(a), 127
Stat. 672, 851 (2013). Otherwise, the Secretary may transfer a
Guantanamo Bay prisoner only if he or she “determines” that:
(1) “actions that have been or are planned to be taken will
substantially mitigate the risk of such individual engaging or
reengaging in any terrorist or other hostile activity that
threatens the United States or United States persons or

Page 2 of 9

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

3
interests;” and (2) “the transfer is in the national security
interest of the United States.” Id. at § 1035(b). In making those
determinations, the Secretary must “evaluate and take into
consideration” eight separate factors. Id. at § 1035(c).
On May 31, 2014, the Secretary of Defense exercised his
statutory authority to transfer five Guantanamo Bay prisoners
to Qatar in exchange for the release of Bowe Bergdahl, an
American soldier who was captured and held in Afghanistan.
That same day, the Secretary sent eight identical classified
letters to eight members of Congress statutorily entitled to
notice, explaining that he had authorized the transfer under
NDAA section 1035(b) because he “determined” that: (1) the
government of Qatar would “substantially mitigate” the threats
posed by the prisoners; and (2) the transfer was “in the national
security interest of the United States.” J.A. 17. Three days
later, Judicial Watch submitted the FOIA request at issue here,
asking the government to produce “any and all records
concerning, regarding, or relating to” the Secretary of
Defense’s “determinations” regarding the five Guantanamo
Bay prisoners who were transferred to Qatar. Id. at 28. In
response to DOD’s objection that the request was overbroad,
Judicial Watch pared it down to “any and all Secretary of
Defense memos signed on or before May 31, 2014, that
approved the release of the five Guantanamo Bay detainees
exchanged for Sgt. Bowe Bergdahl,” as well as “copies of any
‘determinations’ made by the Secretary of Defense” pursuant
to section 1305(a) of the NDAA “if such determinations [were]
. . . separate and apart from the ‘memos’ that the Secretary of
Defense may have signed.” Id. at 39.
Judicial Watch did not receive a timely response to its
request. On November 18, 2014, Judicial Watch filed a
complaint in district court against the Department of Defense
alleging that the Department had failed to comply with its

Page 3 of 9

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

4
obligations under FOIA. DOD answered that it was “in the
process of responding to [Judicial Watch’s] FOIA request.”
J.A. 11. The Department provided its final response on April
27, 2015, stating that “[t]he only documents responsive to [the]
request [were the] eight identical classified letters addressed to
members of Congress.” J.A. 13. DOD gave Judicial Watch a
copy of one of the eight letters with all classified information
redacted. See 5 U.S.C. § 552 (b) (1) (explaining that FOIA’s
disclosure requirements are inapplicable to “properly
classified” information).
The Department then moved for summary judgment. In
support of its motion, DOD submitted a declaration from Mark
H. Herrington, an attorney in the Department’s Office of
General Counsel, describing the processes that DOD had used
to identify records responsive to Judicial Watch’s FOIA
request. Department staff had thoroughly searched DOD
records and concluded that the only “potentially responsive”
material was a packet prepared by Assistant Secretary of
Defense Michael Lumpkin. Id. at 23. The packet included a
“cover memo[]” from Mr. Lumpkin to the Secretary of Defense
(the Lumpkin Memo) setting forth Mr. Lumpkin’s
recommendation regarding the Guantanamo Bay detainees,
and the eight letters to members of Congress, which Mr.
Lumpkin had prepared for the Secretary’s signature. Id. Mr.
Herrington attested that the Secretary did not sign or endorse
the Lumpkin Memo, nor send the memo to Congress. Rather,
the Secretary only signed and sent the accompanying letters.
Id.
Mr. Herrington averred that DOD staff did not produce the
Lumpkin cover memo because it “did not constitute a signed
memo or other determination by the Secretary of Defense
relating to the detainees” and so was not responsive to Judicial
Watch’s request. J.A. 24. Even if the memo were responsive,

Page 4 of 9

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

5
Mr. Herrington asserted, it would be exempt from disclosure as
a privileged deliberative document. See Pub. Citizen, Inc. v.
Office of Mgmt. & Budget, 598 F.3d 865, 874 (D.C. Cir. 2010)
(explaining that FOIA does not require agencies to disclose
privileged information).
The district court granted DOD’s summary judgment
motion. See Judicial Watch, Inc. v. U.S. Dep’t of Def., No. 14
Civ. 1935 (ABJ), 2016 WL 410993 (D.D.C. Feb. 2, 2016)
(Judicial Watch I). The court described the Lumpkin Memo as
“responsive to [Judicial Watch’s] request,” id. at *1, but held
that it was protected by the “deliberative process privilege,” id.
at *2. Judicial Watch appealed.
II.
Congress enacted FOIA to give the public “access to
official information long shielded unnecessarily from public
view.” Nat’l Ass’n of Criminal Def. Lawyers v. U.S. Dep’t of
Justice Exec. Office for U.S. Attorneys, 829 F.3d 741, 744
(D.C. Cir. 2016) (quoting Milner v. Dep’t of Navy, 562 U.S.
562, 565 (2011)). The Act requires government agencies to
make information available upon request, unless the
information is protected by one of nine statutory “exemptions.”
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975); see
5 U.S.C. § 552(b). In this case, the government has invoked
Exemption 5, 5 U.S.C. § 552(b)(5), which allows agencies to
withhold information that would in the context of litigation be
protected from discovery by a “recognized evidentiary or
discovery privilege[].” Pub. Citizen, 598 F.3d at 874. “Among
th[e] privileges protected by Exemption 5 is the . . . deliberative
process privilege,” Arthur Andersen & Co. v. IRS, 679 F.2d
254, 257 (D.C. Cir. 1982) (internal quotation marks omitted),
which protects government documents that are both
“predecisional” and “deliberative,” Pub. Citizen, 598 F.3d at

Page 5 of 9

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

6
874. Documents are “predecisional” if they are “generated
before the adoption of an agency policy,” and “deliberative” if
they “reflect[] the give-and-take of the consultative process.”
Id. (quoting Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151
(D.C. Cir. 2006)).
The deliberative process privilege reflects the commonsense notion that agencies craft better rules when their
employees can spell out in writing the pitfalls as well as
strengths of policy options, coupled with the understanding that
employees would be chilled from such rigorous deliberation if
they feared it might become public. See Sears, 421 U.S. at 150
(“[H]uman experience teaches that those who expect public
dissemination of their remarks may well temper candor with a
concern for appearances . . . .” (quoting United States v. Nixon,
418 U.S. 683, 705 (1974)). The privilege also avoids confusion
from premature disclosure of ideas that are not—or not yet—
final policy, and misimpressions from “dissemination of
documents suggesting reasons and rationales” not ultimately
relied on. Coastal States Gas Corp. v. Dep’t of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980).
The question in this case is whether the Lumpkin Memo is
covered by the deliberative process privilege and therefore
exempt from disclosure under FOIA. Judicial Watch does not
dispute that, when the Lumpkin Memo was drafted, it was both
predecisional and deliberative. Nevertheless, Judicial Watch
notes, a document can lose its predecisional character—and the
protections of the privilege—if an agency adopts the document
as its own. Sears, 421 U.S. at 161; Coastal States, 617 F.2d at
866; Horowitz v. Peace Corps, 428 F.3d 271, 276 (D.C. Cir.
2005). To adopt a deliberative document, it is not enough for
an agency to make vague or equivocal statements implying that
a position presented in a deliberative document has merit;
instead, the agency must make an “express[]” choice to use a

Page 6 of 9

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

7
deliberative document as a source of agency guidance. Sears,
421 U.S. at 161 (emphasis in original); see also Afshar v. Dep’t
of State, 702 F.2d 1125, 1142 (D.C. Cir. 1983).
Judicial Watch contends that the Secretary of Defense
“expressly adopted” the Lumpkin Memo when he signed the
attached letters to Congress, Reply Br. 2, but that contention is
unsupported by the record. Mr. Herrington stated that the
Secretary never “endorse[d]” the Lumpkin Memo. The only
reasoning that the Secretary of Defense held out as his own was
the reasoning in the congressional letters.
Judicial Watch characterizes the Secretary’s signing and
sending the letters as a ratification of the cover memo’s
reasoning. That does not necessarily follow. The Secretary
might have relied on the memo’s reasoning in deciding to take
the action it recommended, but it is also possible that he did
not. We therefore cannot treat the memo as a decisional
document subject to disclosure. Sears, 421 U.S. at 161; see
also Afshar, 702 F.2d at 1143 n.22 (suggesting that an agency
employee cannot strip a memo of its predecisional character by
silently “carr[ying] out” the memo’s recommended course of
action).
Judicial Watch pushes back on this conclusion in three
ways, each of which is unconvincing. First, because the district
court found that the Lumpkin Memo was “responsive” to
Judicial Watch’s request for signed “Secretary of Defense
memos” and official secretarial “determination[s],” Judicial
Watch concludes that the Lumpkin Memo must have been an
official secretarial document. We are sensitive to the fact that
plaintiffs in FOIA litigation must of necessity rely on
inferences from the limited information available to them about
documents asserted to be privileged. In this case, that means
Judicial Watch is reading a great deal into the district court’s

Page 7 of 9

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

8
description of the Lumpkin Memo. But after reviewing the
memo in camera, we conclude that the memo is neither a signed
memo nor a secretarial determination regarding the detainees.
Thus, while we are perplexed by the district court’s statement
that the Lumpkin Memo was responsive to Judicial Watch’s
FOIA request—at least as the request was pared down to seek
only the Secretary’s signed memos or decisional documents—
we agree with that court’s holding that the memo was
privileged.
Second, Judicial Watch points to Mr. Herrington’s
statement that it is “common for the Secretary of Defense not
to endorse a cover memo[], if he proceeds to sign the
correspondence submitted beneath the cover memo[].” But,
taking into account the Secretary’s common practices, Mr.
Herrington concluded that signing the correspondence
submitted beneath the Lumpkin Memo was not an
“endorse[ment]” of the memo’s analysis. Herrington Decl.
at 5.
Finally, Judicial Watch insists that the Secretary must have
adopted the Lumpkin Memo to satisfy his recordkeeping
obligations under 44 U.S.C. § 3101. See 44 U.S.C. § 3101
(requiring the “head of each [f]ederal agency” to “make and
preserve records containing adequate and proper
documentation of the organization, functions, policies,
decisions, procedures, and essential transactions of the
agency”). But, to satisfy his obligations under that statute, the
Secretary need only preserve the memo and signed letters to
Congress. He need not also produce them or any other
nondecisional records of the agency’s internal workings and
“essential transactions.” Id.

Page 8 of 9

USCA Case #16-5054

Document #1659790

Filed: 02/07/2017

9
***
Seeing no reason to disturb the district court’s judgment
that the Lumpkin Memo was a privileged deliberative
document, we affirm.
So ordered.

Page 9 of 9