JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF DEFENSE

Filing 27

MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 2/2/2016. (lcabj2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
U.S. DEPARTMENT OF DEFENSE,
)
)
Defendant.
)
____________________________________)
JUDICIAL WATCH, INC.

Civil Action No. 14-1935 (ABJ)

MEMORANDUM OPINION
Plaintiff Judicial Watch, Inc. has brought this action against the United States Department
of Defense under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking records relating
to the decision of the Secretary of the Department of Defense to transfer five Guantanamo Bay
detainees to the state of Qatar in exchange for the return of Sergeant Bowe Bergdahl. Compl.
[Dkt. # 1]. After conducting a search, defendant located no records responsive to plaintiff’s
specific request, but it nevertheless produced one document that was “similar” to the type of
documents plaintiff sought, and it has now moved for summary judgment. Def.’s Mot. for Summ.
J. [Dkt. # 13] (“Def.’s Mot.”); Mem. of P. & A. in Supp. of Def.’s Mot. [Dkt. # 13-1] (“Def.’s
Mem.”).
In a FOIA case, the district court reviews the agency’s action de novo and “the burden is
on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). “FOIA cases are typically and appropriately decided
on motions for summary judgment.” Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). On a
motion for summary judgment, a court “must view the evidence in the light most favorable to the
nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility

determinations or weighing the evidence.” Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir.
2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). But where a
plaintiff has not provided evidence that an agency acted in bad faith, “a court may award summary
judgment solely on the basis of information provided by the agency in declarations.” Moore, 601
F. Supp. 2d at 12.
In its opposition to defendant’s motion for summary judgment, plaintiff stated that “it will
not challenge the scope of Defendant’s search” and that it was “not challenging any of [the]
redactions made to the record produced by Defendant.” Pl.’s Mem. of Law in Opp. to Def.’s Mot.
[Dkt. # 17] (“Pl.’s Opp.”) at 2. However, plaintiff opposed the entry of judgment at that time
because defendant’s materials in support of its motion made reference to an additional record that
had not been produced and which plaintiff believed to be responsive to its request. Id. The
document was described as “a cover memorandum with attachments to the Secretary of Defense
from Assistant Secretary of Defense Michael D. Lumpkin . . . for consideration of approving the
transfer of the five detained individuals.” Decl. of Mark H. Herrington in Supp. of Def.’s Mot.
[Dkt. # 13-2] ¶ 12. Defendant asserted that the document was not responsive to plaintiff’s FOIA
request, and that even if it was responsive, “it would be exempt as deliberative process privileged
under 5 U.S.C. § 552(b)(5).” Def.’s Mem. at 8 & n.3.
On December 7, 2015, the Court ordered defendant to deliver the so-called Lumpkin
Memorandum for the Court’s in camera review. Min. Order (Dec. 7, 2015). After reviewing the
document, the Court concluded that the record was responsive to plaintiff’s request, but that it was
covered by the deliberative process privilege, and that nothing beyond the TO:, FROM:, and
SUBJECT: lines could be reasonably segregated. Min. Order (Dec. 22, 2015). The Court ordered
defendant to produce only that portion of the Lumpkin Memorandum to plaintiff and to redact the

2

rest of the record, and it called for the parties’ positions on whether the disposition of the Lumpkin
Memorandum resolved the case in its entirety. Id.
Despite the Court’s finding that the Lumpkin Memorandum was subject to the deliberative
process privilege, plaintiff took the position that “the status of the Lumpkin memo has not yet been
fully resolved,” and it requested further briefing “to determine whether or not Defendant is
properly withholding the portions of the memo that remain redacted.” Joint Status Report (Jan.
15, 2016) [Dkt. # 22] at 2. Defendant maintained that the Court’s decision regarding the Lumpkin
Memorandum resolved the entire matter. Id. at 5.
In an abundance of caution, the Court required defendant to formally assert the deliberative
process privilege over the redacted portions of the Lumpkin Memorandum, and it gave plaintiff
the opportunity to explain its reasoning for why the privilege did not apply. Min. Order (Jan. 19,
2016). Defendant filed a notice formally asserting the deliberative process privilege on January
22, 2016, Notice [Dkt. # 23], and plaintiff filed its response on January 29, 2016, arguing that the
Secretary of Defense had either formally or informally adopted the Lumpkin Memorandum as part
of his final decision regarding the disposition of the Guantanamo Bay detainees, and therefore, the
record should be produced even if it was deliberative. Pl.’s Resp. to Ct. Min. Order of Jan. 19,
2016 [Dkt. # 25] (“Pl.’s Resp.”).
“The deliberative process privilege rests on the obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery,” and its
purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion
among those who make them within the Government.” U.S. Dep’t of Interior v. Klamath Water
Users Protective Ass’n, 532 U.S. 1, 8–9 (2001), quoting NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 151 (1975). Thus, the privilege only “protects agency documents that are both predecisional

3

and deliberative.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006); accord
McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011). “[A]
document [is] predecisional if ‘it was generated before the adoption of an agency policy’ and
deliberative if ‘it reflects the give-and-take of the consultative process.’” Judicial Watch, 449 F.3d
at 151, quoting Coastal States Gas Corp. v. U.S. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980).
Upon consideration of the parties’ pleadings and the Lumpkin Memorandum itself, the
Court again finds that the redacted portions of the document were properly withheld as subject to
the deliberative process privilege. The Court’s in camera review of the Lumpkin Memorandum
confirmed that it satisfied both prongs of the deliberative process privilege, because it is both
predecisional and deliberative, and plaintiff does not appear to dispute that assessment. See Pl.’s
Resp. at 2–4. But plaintiff contends that the Lumpkin Memorandum lost the protection of the
privilege when “the Secretary of Defense adopted the Lumpkin memo,” and it cites several cases
in support of its contention that the record should be produced. Id. at 3–4.
The cases upon which plaintiff relies are distinguishable. The Court has been provided
with no indication that the Secretary of Defense ever “expressly adopted” the Lumpkin
Memorandum, or that the document was incorporated by reference in a memorandum that
followed the decision. See Afshar v. U.S. Dep’t of State, 702 F.2d 1125, 1139–40 (D.C. Cir. 1983)
(“[I]f a recommendation contained in a predecisional memorandum is expressly adopted or
incorporated by reference in a nonexempt postdecisional memorandum, the predecisional
recommendations must be made public as well.”); Nat’l Council of La Raza v. U.S. Dep’t of
Justice, 411 F.3d 350, 356 (2d Cir. 2005) (“An agency may be required to disclose a document
otherwise entitled to protection under the deliberative process privilege if the agency has chosen

4

‘expressly to adopt or incorporate by reference [a] . . . memorandum previously covered by
Exemption 5 in what would otherwise be a final opinion.’”), quoting Sears, 421 U.S. at 161;
Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967, 973 (7th Cir. 1977) (requiring
disclosure of “an underlying memorandum” that was “expressly relied on in a final agency
dispositional document,” even though “only part” of the document was “expressly reproduced” in
the final decision). So those cases do not suggest that the Lumpkin Memorandum has lost the
protection of the privilege.
Plaintiff also asserts that “the Lumpkin memo was, at least indirectly, used in the
Department of Defense’s dealings with the public and there is no evidence that it deviated from
the Secretary’s decision on the transfer.” Pl.’s Resp. at 4, citing Coastal States, 617 F.2d at 866.
But the Congressional testimony to which plaintiff directs the Court does not show that the
Secretary expressly adopted or relied on the Lumpkin Memorandum. See id. at 4 & n.1. Instead,
it shows, at most, that it may have been used as part of the larger decision-making process. Absent
some showing that the agency either expressly or implicitly utilized the Lumpkin Memorandum
in connection with its communication of its decision to the public, there is no basis to call for its
release; the cases plaintiff cites do not go so far as to call for the abrogation of the deliberative
process privilege merely because the decisionmaker ultimately acted in accordance with the
recommendation in a deliberative document. See, e.g., Afshar, 702 F.2d at 1143 n.22 (“If the
agency merely carried out the recommended decision without explaining its decision in writing,
we could not be sure that the memoranda accurately reflected the decisionmaker’s thinking.”); Am.
Soc’y of Pension Actuaries v. IRS, 746 F. Supp. 188, 191 (D.D.C. 1990) (“[T]he simple fact that
an intra-agency deliberative memorandum reaches the same conclusion as the ultimate decision-

5

maker provides no guarantee that the memorandum represents the views actually adopted by the
government.”).
Under plaintiff’s approach, no memorandum containing recommendations would remain
privileged after a decision in accordance with that document has been made, and that is not the
state of the law. See, e.g., Pension Actuaries, 746 F. Supp. at 191 (“[P]ermitting FOIA to reach
all documents expressing the bottom-line conclusion eventually espoused by the government
would intrude severely into the deliberative process exemption.”). Thus, the Court’s decision that
the Lumpkin Memorandum is protected by the deliberative process privilege stands. And because
the parties appear to agree that no other issues remain outstanding, see Joint Status Report (Jan.
15, 2016) at 2–5, defendant’s motion for summary judgment will be granted.
A separate order will issue.

AMY BERMAN JACKSON
United States District Judge
DATE: February 2, 2016

6