DocuFreedom Inc. v. United States Department of Justice et al
Filing
25
MEMORANDUM AND ORDER granting in part and denying in part 19 defendant United States Department of Justice's Motion for Summary Judgment. IT IS FURTHER ORDERED THAT defendant Karen McFadden is dismissed from this case. See order for additional deadlines and details. Signed by District Judge Daniel D. Crabtree on 08/16/2019. (tvn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DOCUFREEDOM INC.,
Plaintiff,
v.
Case No. 17-2706-DDC-TJJ
UNITED STATES DEPARTMENT
OF JUSTICE and KAREN
MCFADDEN,
Defendants.
____________________________________
MEMORANDUM AND ORDER
Plaintiff DocuFreedom filed this lawsuit after defendant United States Department of
Justice (“DOJ”) failed to respond to its Freedom of Information Act (“FOIA”) requests within
the statutory time limit. Doc. 9 (Am. Compl.). In total, DocuFreedom requested that DOJ
produce 119 items from the DOJ Library and a series of emails from defendant Karen
McFadden, who coordinated DOJ’s response to DocuFreedom’s FOIA requests. DOJ since has
produced 112 items in full and Ms. McFadden’s emails in part. And now, only a handful of
items remain in dispute: 17 DOJ Library items and certain redactions to Ms. McFadden’s
emails.1
DOJ has moved for summary judgment, arguing its withholdings are proper under several
FOIA exemptions. Doc. 19. DocuFreedom challenges some, but not all, of DOJ’s withholdings.
Doc. 22. And DOJ has filed a Reply. Doc. 23.
1
The court refers to the documents requested by DocuFreedom from DOJ Library as “items” and
information requested from Ms. McFadden’s emails as “redactions.” When referring to a specific item or redaction,
the court capitalizes each term—e.g., “Item 4” or “Redaction 5.”
Mindful of the delicate balance FOIA aims to achieve, the court reaches some
conclusions but must defer others. First, the court grants summary judgment in DOJ’s favor for
certain items under the work product privilege contained in FOIA Exemption 5. But, the court
denies summary judgment without prejudice on this record for the remaining items—the court
directs DOJ to submit these items for in camera review and provide supplemental briefing.
Second, the court grants summary judgment in DOJ’s favor for the redactions to
Ms. McFadden’s emails, sustaining the deliberative process privilege invoked by DOJ and
contained in FOIA Exemption 5. After discussing the facts governing this motion, the court
explains its reasoning.
I.
Background
A.
Summary Judgment Facts
The Justice Management Division (“JMD”) is a division of the United States Department
of Justice. And within JMD is the Library Staff. The JMD Library Staff manages DOJ’s Main
Library and six other DOJ libraries (“JMD-controlled libraries”). JMD-controlled libraries
maintain collections and other legal and general resources that DOJ employees use for their
research needs.
The JMD Library Staff also maintains the DOJ Libraries Online Catalog (“Catalog”).
The Catalog lists materials, but the list is not limited to materials in the possession of the JMDcontrolled libraries or otherwise held by JMD. For example, the Catalog includes materials held
by libraries managed by other DOJ components. So, many materials in the Catalog only are
accessible to employees of those other components.
2
Over the course of 11 months, DocuFreedom made several FOIA requests to JMD. On
February 7, 2017, JMD received a FOIA request from DocuFreedom. DocuFreedom requested a
copy of the Catalog.
On July 21, 2017, DocuFreedom requested the Catalog again, but in spreadsheet form.
DocuFreedom also requested 37 items listed in the Catalog.
On November 9, 2017, JMD received more FOIA requests from DocuFreedom. Namely,
DocuFreedom asked JMD to produce 63 more items identified in the Catalog.
On December 17, 2017, JMD received another series of FOIA requests from
DocuFreedom. DocuFreedom requested emails to and from JMD employee Karen McFadden
about DocuFreedom’s FOIA requests. And, on January 3, 2018, DocuFreedom requested 19
more items listed in the Catalog.
JMD acknowledged DocuFreedom’s January 3, 2018, FOIA request in a timely fashion.
But DocuFreedom failed to acknowledge the requests made on July 21 and November 9, 2017.
On May 16, 2018, JMD began sending DocuFreedom materials in response to its FOIA
requests. JMD sent DocuFreedom a searchable PDF of the Catalog (current as of May 19, 2017)
and an Excel spreadsheet version of the Catalog (current as of January 11, 2018). Also, when
possible, JMD’s responses directed DocuFreedom to all publicly available material responsive to
the FOIA requests.
JMD produced some materials responsive to DocuFreedom’s FOIA requests, but it
withheld others based on exemptions or other statutory grounds. JMD tracked its response for
each requested item on a production table. JMD gave DocuFreedom a copy of the production
table, which outlined the production status for all 119 items requested from the Catalog.
3
JMD produced all of Karen McFadden’s responsive emails about DocuFreedom’s FOIA
requests. But JMD redacted portions of these emails based on FOIA Exemptions (b)(5) and
(b)(6). JMD also withheld Items 2–13, 37, 39, 49–50, and 90. JMD asserted that it was
withholding these items under Exemption (b)(5) of FOIA. And JMD withheld Item 10 under
Exemption (b)(6). Last, JMD did not produce Items 19, 56, 86–87, and 97 because they were not
in JMD’s possession.
B.
Procedural History
On December 13, 2017, DocuFreedom filed a Complaint in our court. Doc. 1. The
Complaint asserts that defendants—by failing to respond to DocuFreedom’s FOIA requests from
July 21 and November 9, 2017—had violated FOIA, the Administrative Procedures Act
(“APA”), and the Open Government Act of 2007. In March 2018, DocuFreedom filed an
Amended Complaint (Doc. 9). It incorporates DocuFreedom’s January 3, 2017, Catalog requests
and its request for Ms. McFadden’s emails.
Defendants then moved to stay the case for 45 days. Doc. 10. The court granted the stay
to allow defendants either to produce the requested materials or to identify applicable
exemptions. Doc. 11. The court continued the stay as the parties worked to resolve the FOIA
requests. Doc. 13. Ultimately, DOJ produced 102 of the 119 items in full and Ms. McFadden’s
emails with redactions. DOJ then moved for summary judgment (Doc. 19), asserting the
remaining items and the redactions to Ms. McFadden’s emails properly were withheld under
several FOIA exemptions.
4
II.
Legal Standards
A.
FOIA
FOIA was enacted “to pierce the veil of administrative secrecy and to open agency action
to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976). “FOIA
provides the public ‘a right of access, enforceable in court, to federal agency records, subject to
nine specific exemptions.’” Hull v. I.R.S., 656 F.3d 1174, 1177 (10th Cir. 2011) (quoting
Anderson v. Dep’t of Health & Human Servs., 907 F.2d 936, 941 (10th Cir. 1990)); Trentadue v.
Integrity Comm., 501 F.3d 1215, 1225–26 (10th Cir. 2007) (“Notwithstanding FOIA’s aspiration
of governmental transparency, Congress recognized that disclosure of certain classes of
documents could harm legitimate government interests.”). Of the nine exemptions to FOIA, two
matter in this case:
(5) 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;
(6) personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy[.]
5 U.S.C. § 552(b).
Several principles guide the court’s analysis in FOIA cases. First, the court must broadly
construe FOIA in favor of disclosure. Integrity Comm., 501 F.3d at 1226 (citation omitted).
Second, the court must apply FOIA’s exemptions narrowly. Id. (citation omitted). Third, FOIA
directs government agencies to provide “[a]ny reasonably, segregable portion of a record . . . to
any person requesting such record after deletion of the portions which are exempt.” Id. (quoting
5 U.S.C. § 552(b)).
5
B.
Summary Judgment
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Stein v. U.S. Dep’t of Justice, 134 F. Supp. 3d 457, 468 (D.D.C. 2015) (quoting Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 602 F. Supp. 2d 121, 123 (D.D.C.
2009)). The district court reviews de novo the government’s decision to withhold documents
under any of FOIA’s statutory exemptions. Id. (citation omitted). And, the government bears
the burden to prove that the requested information falls within one of FOIA’s nine exemptions.
Hull, 656 F.3d at 1177 (citing 5 U.S.C. § 552(a)(4)(B)); Shapiro v. U.S. Dep’t of Justice, 969 F.
Supp. 2d 18, 26 (D.D.C. 2013) (“Once [a FOIA] action is filed, the agency generally has the
burden of demonstrating that its response to the plaintiff’s FOIA request was appropriate.”)
(citation omitted).
Generally, a government agency submits affidavits to satisfy its burden of proof. Hull,
656 F.3d at 1177. Specifically,
[A]ffidavits must show, with reasonable specificity, why the
documents fall within the exemption. The affidavits will not suffice
if the agency’s claims are conclusory, merely reciting statutory
standards, or if they are too vague or sweeping. If the affidavits
provide specific information sufficient to place the documents
within the exemption category, if the information is not contradicted
in the record, and if there is no evidence in the record of agency bad
faith, then summary judgment is appropriate without in camera
review of the documents.
Id. at 1177–78 (quoting Quiñon v. FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996)). “Ultimately, an
agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or
‘plausible.’” Stein, 134 F. Supp. 3d at 468–69 (quoting ACLU v. U.S. Dep’t of Def., 628 F.3d
612, 619 (D.C. Cir. 2011)). If the government’s affidavits or declarations leave more to be
6
desired, the court—in its discretion—may order the agency to produce a Vaughn index2 or to
submit the requested information for in camera review. Hull, 656 F.3d at 1178 (citing Quiñon,
86 F.3d at 1227) (further citation omitted); see also N.Y. Times Co. v. U.S. Dep’t of Justice, 758
F.3d 436, 438 (2d Cir. 2014) (“The Vaughn index procedure was developed to avoid the
cumbersome alternative of routinely having a district court examine numerous multi-page
documents in camera to make exemption rulings.”), supplemented, 762 F.3d 233 (2d Cir. 2014).
In this case, DOJ has attached both declarations and a Vaughn index to its Memorandum in
Support of Motion for Summary Judgment. Docs. 20-1 (Feldt Decl.), 20-2 (Allen Decl.), 20-3
(Vaughn Index).3
III.
Discussion
DocuFreedom’s Amended Complaint makes three claims. DocuFreedom asserts that
DOJ violated FOIA by failing to respond within the statutory timeframe (Count I); that DOJ
acted arbitrarily and capriciously in denying its requests under the APA (Count II); and that DOJ
violated the Open Government Act of 2007 by failing to acknowledge receipt of DocuFreedom’s
FOIA requests (Count III). Doc. 9 at 20–21 (Am. Compl. ¶¶ 56–68). As explained, each count
falls under FOIA, and, at this stage, it is premature for the court to address Counts II and III.
Count II alleges a violation of the APA for DOJ’s “arbitrary and capricious conduct” in
withholding the requested items. Courts uniformly have “declined jurisdiction over APA claims
that sought remedies made available by FOIA.” Feinman v. F.B.I., 713 F. Supp. 2d 70, 76
(D.D.C. 2010) (collecting cases). And here, FOIA provides the relief DocuFreedom seeks.
2
A Vaughn index looks like a privilege log commonly used in civil litigation. And it functions in much the
same fashion. It lists each withheld (or partially withheld) document and explains why the agency withheld the
information. Kansas ex rel. Schmidt v. U.S. Dep’t of Def., 320 F. Supp. 3d 1227, 1238 n.2 (D. Kan. 2018) (citing
Hull, 656 F.3d at 1178 n.2).
3
In its Reply, DOJ also has included a supplemental declaration of Mr. Feldt. Doc. 23-1 (Supp. Feldt Decl.).
7
Specifically, DocuFreedom asserts that the court can make a factual finding “whether the agency
personnel acted arbitrarily or capriciously with respect to the withholding.” Doc. 22 at 15. This
kind of finding is predicated on the court ordering “the production of any agency records
improperly withheld from the complainant” and assessing attorneys’ fees and other litigation
costs against the United States. 5 U.S.C. § 552(a)(4)(F)(i). This Order does not direct DOJ to
produce any agency records improperly held from the complainant, nor does it assess attorneys’
fees and other litigation costs against DOJ. It is thus premature to consider whether DOJ’s
conduct was arbitrary or capricious.
Count III alleges a violation of the Open Government Act of 2007. Doc. 9 at 21 (Am.
Compl. ¶¶ 65–68). The Act modified FOIA, most notably by changing the requirements for a
FOIA plaintiff to qualify for an award of attorneys’ fees. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 525 (D.C. Cir. 2011) (“[P]laintiffs can now qualify as
‘substantially prevail[ing],’ and thus become eligible for attorney fees, without winning courtordered relief on the merits of their FOIA claims.”). This Order does not decide the question
whether DocuFreedom has substantially prevailed in this action because it is premature. Instead,
as explained below, the court directs DOJ to submit additional briefing and several disputed
items for in camera review. Because the court does not decide in this Order whether
DocuFreedom substantially prevailed, the court cannot award attorneys’ fees under FOIA.
Count I (“Violation of FOIA”) is moot for the records released in full and the portions of
the records released in part.4 Am. Immigration Council v. U.S. Dep’t of Homeland Sec., 905 F.
4
DocuFreedom’s Amended Complaint also asks the court to find that DOJ exceeded the legal response time
and, if it needed an extension, DOJ failed to give written notice of that need. Doc. 9 at 21 (Am. Compl. ¶ 69(A)).
The court interprets this request to seek declaratory relief. FOIA does not provide such a remedy in this context.
Hunton & Williams LLP v. U.S. Envtl. Prot. Agency, 248 F. Supp. 3d 220, 259 (D.D.C. 2017) (“‘FOIA does not
create a cause of action for an agency’s untimely response to a FOIA request’ beyond the ability to seek an
injunction from the district court.” (quoting Bangoura v. U.S. Dep’t of Army, 607 F. Supp. 2d 134, 143 (D.D.C.
2009))).
8
Supp. 2d 206, 213 (D.D.C. 2012). So, the question that now is ripe for decision is whether DOJ
properly invoked certain FOIA exemptions. The court divides its analysis of this question into
two parts. First, the court decides whether the items requested by DocuFreedom from the
Catalog and withheld by DOJ were exempted properly from disclosure. Second, the court turns
to Ms. McFadden’s email to determine whether DOJ’s redactions were proper under FOIA.5
A.
Items Requested from the Catalog6
DocuFreedom makes two arguments for release of the disputed records. First,
DocuFreedom asserts that all the items are publicly available under DOJ Library policy. Second,
if not public, DocuFreedom contends that DOJ has not established that certain items are exempt
under FOIA.
1. The Items requested from the Catalog are not publicly available.
DocuFreedom’s Response to the summary judgment motion argues something it never
asserted in its Amended Complaint. It contends that none of the disputed records are exempt
because they are publicly available. Compare Doc. 22 at 9, with Doc. 9 at 4 (Am. Compl. ¶ 14)
(“While the DOJ library is not available to the public, many of the documents in its holdings are
subject to release under FOIA.”). DocuFreedom contends that the disputed records are located in
the DOJ’s library. And, the library is open to the public “by appointment for access to specific
5
Ms. McFadden, as an individual officer, is not a proper party defendant in this FOIA action. A court may
“enjoin the agency from withholding agency records and [ ] order the production of any agency records improperly
withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). Thus, DOJ—but not Ms. McFadden—is the proper
defendant. Barvick v. Cisneros, 941 F. Supp. 1015, 1017 n.2 (D. Kan. 1996); see also Batton v. Evers, 598 F.3d
169, 173 n.1 (5th Cir. 2010) (“A FOIA plaintiff may not assert a claim against an individual federal official; the
proper defendant is the agency.”); Martinez v. Bureau of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (affirming
dismissal of individual defendants because no cause of action existed under FOIA that would entitle plaintiff to
relief against them). The court thus dismisses Ms. McFadden as a defendant.
6
Items 19, 56, 86–87, and 97 are no longer in dispute. Doc. 22 at 14.
9
government depository items or those titles which are unique to our Libraries and cannot be
located elsewhere.” Doc. 22 at 9 (quoting U.S. Dep’t of Justice, Library Staff,
www.justice.gov/jmd/ls (last updated Apr. 12, 2017)).
DOJ, in response, provides the supplemental declaration of Dennis G. Feldt, the Director
of the JMD Library Staff. Doc. 23-1 at 3 (Supp. Feldt Decl.). He asserts that the DOJ Library is
a Federal Depository Library under 44 U.S.C. § 1907. Under this program, the United States
Government Publishing Office provides government publications—such as the Budget of the
United States Government and the Code of Federal Regulations— to depository libraries. Id.
(Supp. Fedlt Decl. ¶ 6). Mr. Feldt’s declaration asserts that the documents at issue here are not
available to the public because they are internally created materials. Id. (Supp. Feldt Decl.
¶¶ 8–9). And, the DOJ Library does not provide access to any internally created materials to the
public (or other government agencies) without securing permission from the division or
component who created the material. Id. (Supp. Feldt Decl. ¶ 8). Of course, DOJ Library
documents remain subject to FOIA. See id. (Supp. Feldt Decl. ¶ 9).
DOJ has the better of this argument. While the requested documents are government
documents, they are not government publications. Under the Federal Depository Library
Program, “government publication” is defined to mean “informational matter which is published
as an individual document at Government expense, or as required by law.” 44 U.S.C. § 1901.
So, while these items may be in the Catalog of JMD-controlled libraries, it does not follow that
each library item has been published. Instead, as Mr. Feldt explains, the disputed documents are
internally created materials. The proper avenue for disclosure here is FOIA, not the Federal
Depository Library Program under 44 U.S.C. §§ 1901–16.
10
2. Items 2–3, 5, 7–9, 11–13, and 90 were withheld properly as attorney work
product under Exemption 5.
DOJ contends that each of these withheld documents falls within a statutory exemption to
disclosure. See 5 U.S.C. § 552(b). Namely, DOJ asserts, each document falls within Exemption
5, which applies to “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.” Id. § 552(b)(5).
To qualify as exempt under (b)(5), the documents must satisfy two conditions: (1) its
source must be a government agency; and (2) it must fall “within the ambit of a privilege against
discovery under judicial standards that would govern litigation against the agency that holds it.”
Raytheon Aircraft Co. v. U.S. Army Corps of Engineers, 183 F. Supp. 2d 1280, 1287 (D. Kan.
2001) (quoting Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001)).
DocuFreedom does not dispute that the documents at issue here come from government agency
sources. So, the court next considers whether, under the second requirement, the documents are
protected by the attorney work product privilege.
Exemption 5 protects material that would be “normally privileged in the civil discovery
context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). DOJ contends that the
documents would be privileged in civil discovery under the attorney work product privilege.
The attorney work product privilege protects an attorney’s mental processes and thoughts form
disclosure. Raytheon, 183 F. Supp. 2d at 1287 (citing Hickman v. Taylor, 329 U.S. 495, 511
(1947)) (further citation omitted). To qualify as attorney work product, the materials must (1) be
documents or tangible things; (2) prepared in anticipation of litigation or for trial; and (3)
prepared by or for a party or a representative of that party. Id. (citing Johnson v. Gmeinder, 191
F.R.D. 638, 643 (D. Kan. 2000)).
11
“The attorney work product privilege ‘should be interpreted broadly and held largely
inviolate’ as ‘it is essential that a lawyer work with a certain degree of privacy, free from
unnecessary intrusion by opposing parties and their counsel.’” Stein, 134 F. Supp. 3d at 477
(first quoting Judicial Watch v. U.S. Dep’t of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005); then
quoting Hickman, 329 U.S. at 510). “Any part of [a document] prepared in anticipation of
litigation, not just the portions concerning opinions, legal theories, and the like, is protected by
the work product doctrine.” Stein, 134 F. Supp. 3d at 477 (quoting Tax Analysts v. IRS, 117 F.3d
607, 620 (D.C. Cir. 1997)). But, in cases “involving voluminous or lengthy work product
records . . . it [is] preferable for courts to make at least a preliminary assessment of the feasibility
of segregating nonexempt material.” Nat’l Ass’n of Criminal Def. Lawyers v. Dep’t of Justice
Exec. Office for U.S. Attorneys, 844 F.3d 246, 255 (D.C. Cir. 2016) (hereinafter NACDL).
Whether material was created “in anticipation of litigation” often proves critical when the
government asserts the work product privilege. In FOIA cases, “the temporal relationship
between the document at issue and the litigation for which the document was prepared is
irrelevant.” Stein, 134 F. Supp. 3d at 477 (quoting Shapiro, 969 F. Supp. 2d at 29). Instead, the
court must assess whether “in light of the nature of the document and the factual situation in the
particular case, the document can fairly be said to have been prepared or obtained because of the
prospect of litigation.” NACDL, 844 F.3d at 255. Without such a limitation, the work product
privilege would operate as a rule-swallowing exception, which contradicts FOIA’s preference for
disclosure. Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980)
(“[I]f an agency were entitled to withhold any document prepared by any person in the
Government with a law degree simply because litigation might someday occur, the policies of
FOIA would be largely defeated.”).
12
In the FOIA context, does the work product privilege require the material to be created in
anticipation of a specific claim? Not necessarily. As the D.C. Circuit has explained,
“Exemption 5 extends to documents prepared in anticipation of foreseeable litigation . . . even if
no specific claim is contemplated.” NACDL, 844 F.3d at 253 (quoting Schiller v. NLRB, 964
F.2d 1205, 1208 (D.C. Cir. 1992), abrogated on other grounds by Milner v. U.S. Dep’t of Navy,
562 U.S. 562 (2011)); Al-Turki v. Dep’t of Justice, 175 F. Supp. 3d 1153, 1176 (D. Colo. 2016).
The work product privilege requires no specific claim when lawyers act “not as prosecutors or
investigators of suspected wrongdoers, but as legal advisors protecting their agency clients from
the possibility of future litigation[.]” NACDL, 844 F.3d at 254 (quoting In re Sealed Case, 146
F.3d 881, 885–86 (D.C. Cir. 1998)); Shapiro, 969 F. Supp. 2d at 30 (“[I]f the lawyer is
‘render[ing] legal advice in order to protect the client from future litigation about a particular
transaction,’ no specific claim need have arisen.” (quoting Sealed Case, 146 F.3d at 885)). In
contrast, anticipating a specific claim is required where “the documents at issue [have] been
prepared by government lawyers in connection with active investigations of potential
wrongdoing.” NACDL, 844 F.3d at 254 (quoting In re Sealed Case, 146 F.3d at 885).
The parties direct the court to a pair of cases from the federal district court in the District
of Columbia. They argue that the cases illustrate the proper analysis for deciding whether
material is created in anticipation of litigation in the first scenario—i.e., when a government
attorney acts as a legal advisor. First, in Stein v. United States Department of Justice, 134 F.
Supp. 3d 457 (D.D.C. 2015), plaintiff sued DOJ on six FOIA claims. Id. at 463. Plaintiff
brought one claim against the Civil Division of the United States Department of Justice. Id.
Plaintiff sought copies of three monographs from the Civil Division. Id. at 475. The
monographs were titled “Chevron Notes,” “The Governmental Privileges,” and “Defending
13
Actions Brought Pursuant to the Privacy Act of 1974.” Id. The Civil Division withheld the
monographs under Exemption 5 because, it asserted, the monographs “were created for the
specific purpose of providing legal guidance to federal attorneys and were not intended for
public disclosure.” Id. (citation omitted).
The district court agreed with DOJ. It concluded the monographs were prepared in
anticipation of litigation because they outlined the legal strategies of attorneys who would
litigate on the government’s behalf. Id. at 479. The three monographs, the court explained, were
“‘veritable “how to” manuals for building defenses and litigating’ challenges to agency actions,
assertions of governmental privileges and Privacy Act litigation—precisely the kind of
documents that ‘provid[e] advice to agencies or attorneys about how to conduct legal
proceedings or specific anticipated claims[.]’” Id. at 480 (quoting Shapiro, 969 F. Supp. 2d at
36–37).
Second, in Shapiro v. United States Department of Justice, 969 F. Supp. 2d 18 (D.D.C.
2013), plaintiff filed a FOIA request with the Executive Office for United States Attorneys
seeking “a copy of all records in the Freedom of Information and Privacy Brief Bank . . . .” Id. at
24. The Brief Bank consisted of two broad categories of records: (1) court documents, i.e.,
selected filings from FOIA lawsuits and basic author and case information; and (2) summary
documents, which provided brief summaries of the issues involved in a given case and the
author’s view of the key issues in a case. Id. at 35. DOJ withheld the materials under
Exemption 5, claiming attorney work product. Id. at 25. DOJ’s declarations provided that the
Brief Bank was “maintained on the [DOJ]’s intranet” and was “only available to and accessible
by [DOJ] personnel.” Id. at 24. And, DOJ asserted, the Brief Bank “was created and maintained
14
by an attorney on the EOUSA’s FOIA and Privacy Act Staff,” and that the Brief Bank was “a
tool for use in anticipated FOIA litigation.” Id.
After concluding the Brief Bank did not deserve work product protection as a whole, the
court considered whether a particular part of the Brief Bank—the case summaries—deserved
work product protection. Based on DOJ’s description of the documents as mere summaries or
briefs of cases and key issues, the court concluded that the case summaries revealed no legal
strategy or other case-specific legal considerations that might implicate future litigation. Id. at
37. As the court reasoned, the documents were not “veritable ‘how to’ manuals” because they
provided no advice to agencies or attorneys about how to conduct legal proceedings on specific
anticipated claims against federal agencies; instead, the summaries, in effect, provided “neutral
objective analyses” underserving of work product protection. Id.
Adopting the approach used in these two cases, the court finds that several items more
closely resemble the monographs in Stein than the neutral case summaries in Shapiro. For
example, Item 90 is a “Monograph drafted by DOJ Civil Division Torts Branch addressing the
potential legal liability arising from the involvement of the United States in aeronautical
mapping and charting.” Doc. 20-3 at 6 (Vaughn index # 90). DocuFreedom contends that,
although identified as a monograph, the Vaughn index does not explain whether Item 90 contains
mere case summaries or actual strategic advice from agency attorneys. But DOJ argues the
Vaughn index makes it clear that the monograph addresses “potential legal liability” for action
by the United States and its agencies—here, aeronautical mapping and charting.
Item 90 is covered by the work product privilege, and thus is exempt from disclosure.
DOJ attorneys were acting as “legal advisor[s]” to protect their client—the United States—“from
the possibility of future litigation.” Stein, 134 F. Supp. 3d at 478 (quoting In re Sealed Case, 146
15
F.3d at 885). Specifically, Item 90 addresses legal challenges—i.e., “addressing potential legal
liability”—for a government program—i.e., the government’s involvement in aeronautical
mapping and charting. Thus, unlike a neutral summary, Item 90 offers more “pointed advice” on
“the types of legal challenges likely to be mounted against a proposed program.” Am.
Immigration Counsel, 905 F. Supp. 2d at 221–22 (quoting Delaney, Migdail & Young, Chartered
v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987)).
Other withheld items resemble Item 90, and so the work product privilege applies to them
as well. They are “veritable ‘how to’ manuals for building defenses and litigating” challenges
under the Federal Tort Claims Act (Items 2–3, 5, 7, 8, 9, 11–13). Stein, 134 F. Supp. 3d at 480.
For example, Item 11 is a monograph covering FTCA suits arising in foreign countries. It
“[discusses] how and when such claims arise, when and how the FTCA applies, [discusses]
relevant statutes and case law, and [provides] litigation guidance for DOJ attorneys involved in
such cases.” Doc. 20-3 at 4 (Vaughn index # 11). The remaining documents listed above follow
a similar pattern. See, e.g., Item 2 (“Assault and battery exception”); Item 5 (“Defending the
individual capacity claim”). These items fall within the scope of work product protection
because they present guidance about “recurring, parallel factual settings and identical legal and
policy considerations.” Stein, 134 F. Supp. 3d at 479 (quoting FTC v. Grolier Inc., 462 U.S. 19,
30 (1983) (Brennan, J., concurring in part and concurring in the judgment)). In short, disclosing
these documents would benefit parties bringing claims against the United States under the FTCA
because it would provide the opposing party with “the benefits of the agency’s legal and factual
research and reasoning, enabling [them] to litigate on wits borrowed from” DOJ. Id. (quoting
16
Grolier, 462 U.S. at 30).7 DOJ properly withheld Items 2–3, 5, 7–9, 11–13, and 90 under
Exemption 5.
3. DOJ must produce Items 4, 6, and 37 for in camera review because the
court cannot determine with reasonable certainty from the Vaughn index
that Exemption 5 applies.
DOJ has the burden to establish that it properly invoked Exemption 5 for each disputed
item. Hull, 656 F.3d at 1177. And if the court cannot conclude with “reasonable certainty” that
the agency properly exempted an item, the court may order DOJ to submit the contested item for
in camera review. Schmidt, 320 F. Supp. 3d at 1238 (citing Hull, 656 F.3d at 1178); DeSalvo v.
IRS, 861 F.2d 1217, 1222 n.6 (10th Cir. 1988) (“FOIA allows the district court flexibility in
utilizing in camera review of the disputed documents, indexing, oral testimony, detailed
affidavits, or alternative procedures to determine whether a sufficient factual basis exists for
evaluating the correctness of the [agency] determination in each case.”). The court directs DOJ
to submit Items 4, 6, and 37 for in camera review because the court cannot conclude with
reasonable certainty that Exemption 5 applies to these items in full.
Item 4 is a 470-page compilation that includes briefing papers, practice guides, and
commentaries about a variety of constitutional litigation issues. DocuFreedom asserts that Item
4 is not work product because the Vaughn index does not describe it as a monograph or training
material. But, this characterization isn’t entirely accurate. The Vaughn index characterizes the
collection as “briefing papers, commentaries, sample filings, and monographs . . . prepared by
Civil Division attorneys to assist other Civil Division attorneys in litigating Constitutional and
specialized tort cases.” Doc. 20-3 at 2 (Vaughn index # 4) (emphasis added).
7
In its Response, DocuFreedom has conceded that Items 7, 8, and 9 fall within Exemption 5. Doc. 22 at 7–
8. When a requester expressly disclaims an interest in a category of information, the agency need not disclose the
information because it is outside the scope of the request. Integrity Comm., 501 F.3d at 1233 n.6.
17
Although Item 4 contains monographs, the Vaughn index doesn’t permit the court to
discern with reasonable certainty from the Vaughn index whether the monographs—and other
materials—were prepared in anticipation of litigation. In Stein, the government identified the
monographs by name and divulged their specific focus and application. Stein, 134 F. Supp. 3d at
475–76. This permitted the district court to conclude, for example, that “Defending Actions
Brought Pursuant to the Privacy Act of 1974” operated as a “veritable ‘how to’ manual” in
Privacy Act lawsuits. See Stein, 134 F. Supp. 3d at 479–80. In contrast, DOJ broadly asserts
that Civil Division attorneys use the monographs—as well as the briefings papers, commentaries,
and sample filings—to litigate constitutional and specialized tort cases. The court concludes this
generalized assertion of privilege for all the documents in Item 4—the number of documents is
unknown to the court—won’t suffice. Coastal States, 617 F.2d at 865 (“[I]f an agency were
entitled to withhold any document prepared by any person in the Government with a law degree
simply because litigation might someday occur, the policies of FOIA would be largely
defeated.”).
Item 6 is a “Monograph prepared by the director of the Torts Branch and Torts Branch
staff attorneys regarding the discretionary function exception to the Federal Torts Claims Act (28
U.S.C. §§ 2671-2680); includes summaries and analysis of key cases involving the discretionary
function exception.” Doc. 20-3 at 3 (Vaughn index # 6). DocuFreedom asserts that Item 6
consists of “neutral summaries” like the Brief Bank case summaries at issue in Shapiro. In
response, DOJ asserts that the inclusion of the phrase “and analysis” distinguishes Item 6 from
the Brief Book in Shapiro.
The phrase “and analysis” says too little. For one, the court can’t discern whether the
analysis is neutral and objective, in which case Item 6 would operate “like an agency manual,
18
fleshing out the meaning of the law, and thus . . . not prepared in anticipation of litigation.” Am.
Immigration Counsel, 905 F. Supp. 2d at 222 (quoting Delaney, 826 F.2d at 127). Nor does “and
analysis” inform the court whether Item 6 offers more “pointed advice” warranting work product
protection. Id. In short, the court is left to speculate whether “and analysis” simply refers to
DOJ lawyers identifying key issues, as it did in Shapiro.
Last, Item 37 is a 191-page document consisting of two parts: (1) summaries and
commentary on foreign terrorist organization (FTO) decisions in state and federal court, and (2)
a prosecutor’s guide to FTOs. The Vaughn index describes the function of Item 37 as “assisting
government prosecutors and other interested individuals in keeping up-to-date with
developments in FTO-related case law.” Doc. 20-3 at 5 (Vaughn index # 37). Such a description
suggests the summaries do not reveal any “legal strategy or case-specific legal considerations
that might have implications for future litigation if revealed to adversaries.” Shapiro, 969 F.
Supp. 2d at 37; Stein, 134 F. Supp. 3d at 480 (“The monographs here are much more than neutral
summaries.”); see also ACLU of N. Cal. v. U.S. Dep’t of Justice, 880 F.3d 473, 488 (9th Cir.
2018) (“[S]ections provid[ing] objective descriptions of cases . . . more closely resemble
continuing legal education resources for DOJ attorneys than attorney work product.”). In
contrast, the prosecutor’s guide to FTOs may—in part or in full—warrant work product
protection. NACDL, 844 F.3d at 251–52 (concluding training manual was attorney work product
based on extensive government declarations and in camera review).
DOJ requests that the court—should it conclude that it lacks sufficient grounds to apply
Exemption 5—permit DOJ to submit the items for in camera review and allow DOJ to provide
supplemental support. The court agrees. The court directs DOJ to submit Items 4, 6, and 37 for
in camera review. And, if DOJ intends to stand on its position that Exemption 5 shields Items 4,
19
6, and 37, DOJ must file a renewed Vaughn index and may submit supplemental declarations.
DOJ must confine its supplementation to the issues discussed in this Order. Schmidt, 320 F.
Supp. 3d at 1245. DOJ must submit this supplemental material within 30 days of the court
entering this Order. Once DOJ submits its supplemental material, DocuFreedom has 30 days to
file a response. The court will not allow a reply.
4. DOJ also must produce Items 39, 49, and 50 for in camera review
because, although Exemption 5 may apply to internal training materials,
the court must address segregability.
The remaining items can best be described as internal training materials. The court
identifies them briefly, below:
Item 39 is listed as a Trial Advocacy Course from the Attorney General’s Advocacy
Institute—it is described as a training manual for basic training in trial advocacy for DOJ
lawyers and includes “procedures, practice tips, and litigation-strategy guidance for DOJ
litigators, particularly prosecutors.”
Item 49 is a working group manual on federal criminal discovery practices, which covers
“DOJ policy, positions and guidance for federal prosecutors to use as a resource to assess
and fulfill timely discovery obligations.”
Item 50 is a training manual for a criminal advocacy course at DOJ’s internal training
facility. Item 50 addresses “strategies and techniques for criminal prosecution, including
pretrial matters, jury selection considerations, opening and closing statements, direct and
cross examination techniques, expert witness considerations, and sentencing.”
Doc. 20-3 at 5 (Vaughn index # 39, 49, 50). DocuFreedom asserts that Items 49 and 50 are not
exempt because “‘materials serving no cognizable adversarial function, such as policy manuals’
are not work product.” Doc. 22-8 (quoting NACDL, 844 F.3d at 255).
Although DocuFreedom cites NACDL to support its argument, that case actually
undercuts DocuFreedom’s argument. In NACDL, the D.C. Circuit considered whether the
Federal Criminal Discovery Blue Book—an internal DOJ publication—fell within the attorney
work product privilege. NACDL, 844 F.3d at 249. DOJ had created the Blue Book to guide
20
federal prosecutors in their discovery practice in criminal prosecution. Specifically, the Blue
Book contained “information and advice for prosecutors about conducting discovery in their
cases, including guidance about the government’s various obligations to provide discovery to
defendants.” Id.
The D.C. Circuit concluded that the Blue Book was exempt from disclosure under
FOIA’s Exemption 5. Id. at 250. Because the Blue Book was designed to advise DOJ
prosecutors on their discovery disclosure obligations and serve as a litigation manual, it was
“‘created in anticipation of reasonably foreseeable litigation,’ namely, federal criminal
prosecutions.” Id. at 251.8
Turning to the items at issue here, the court concludes that under NACDL the attorney
work product privilege likely applies to Items 39, 49, and 50. First, Item 49 is analogous to the
Blue Book at issue in NACDL—i.e., it is a group manual focused on providing guidance to
federal prosecutors to fulfill their criminal discovery obligations. Second, Items 39 and 50 cover
trial advocacy training. In NACDL, plaintiff argued that the attorney work product privilege did
not apply to the Blue Book because it served a non-adversarial function—i.e. education and
training of prosecutors. Id. at 255. The D.C. Circuit explained that the work product privilege
turns on the document’s function. Id. (citing Delaney, 826 F.2d at 127). If the document serves
8
NACDL represents “the outer reaches of Exemption 5’s reformulation of the work product privilege.”
ACLU of San Diego & Imperial Ctys. v. U.S. Dep’t of Homeland Sec., No. 8:15-CV-00229-JLS-RNB, 2017 WL
9500949, at *9 (C.D. Cal. Nov. 6, 2017). In a concurring opinion in NACDL, two judges felt compelled by
precedent to affirm the government’s use of Exemption 5 but expressed pointed concern about the creep of
Exemption 5’s scope. NACDL, 844 F.3d at 258–60 (Sentelle, J., joined by Edwards, J., concurring) (“In short, I join
the judgment of the majority, not because I want to, but because I have to.”). Judge Sentelle found it unlikely that
“if an insurance defense attorney had written a secret treatise . . . on how to defend . . . defective product cases,” the
court would find the treatise protected as work product if it was “not prepared for a particular client or particular
case, but only to educate attorneys of a particular sort in the litigation of a particular kind of case[.]” Id. at 259. The
concurring opinion raises important questions about the scope of Exemption 5. And, although not binding on this
court, the court finds the D.C. Circuit’s decision in FOIA cases highly persuasive. The court thus applies NACDL’s
majority reasoning to this case.
21
no cognizable adversarial function, it generally does not qualify as work product. Id. (citation
omitted). But, the D.C. Circuit concluded that the Blue Book served an adversarial function—
and thus deserved work product protection—because “it addresse[d] how attorneys on one side
of an adversarial dispute—federal prosecutors—should conduct litigation.” Id. For example, the
Blue Book described how to respond to the other side’s arguments, provided cases to cite, and
explained what material to turn over. Id.
Both Items 39 and 50 serve a similar adversarial purpose. Item 39 is a training manual on
trial advocacy. The Vaughn index explains that it includes “procedures, practice tips, and
litigation-strategy guidance for DOJ litigators, particularly prosecutors.” Doc. 20-3 at 5 (Vaughn
index # 39). And, similarly, Item 50 covers criminal advocacy training. In more detail than Item
39, it explains how it serves an adversarial function—namely, it addresses strategies and
techniques for different stages of a criminal prosecution including pretrial matters, jury selection,
opening and closing statements, direct and cross examinations, and sentencing. Id. (Vaughn
index # 50). Thus, like the Blue Book, Items 39 and 50 serve as training materials for
prosecutors, but they also serve an adversarial function.9
But, the court reserves its summary judgment ruling based on the current record. The
court directs DOJ to provide Items 39, 49, and 50, so the court can conduct an in camera review
of these items. “In cases involving voluminous or lengthy work-product records . . . it [is]
generally preferable for courts to make at least a preliminary assessment of the feasibility of
segregating nonexempt material.” NACDL, 844 F.3d at 256–57. Material is more likely to be
reasonably segregable in long documents with ‘logically divisible sections.’” Id. (quoting Mead
9
DocuFreedom also contests Item 39 because the Vaughn index does not indicate that DOJ attorneys
provided any input into its creation. This argument fails to consider Mr. Allen’s declaration, however. He states
that all the items currently at issue—including Item 39—were “prepared by DOJ attorneys.” Doc. 20-2 at 5 (Allen
Decl. ¶ 21).
22
Data, 566 F.2d 242, 261 n.54 (D.C. Cir. 1977)). In this case, Item 49 is 479 pages; Item 50, 634
pages. Item 39 is only 30 pages, but the court also will review it to determine whether any
portion is segregable. As discussed for Items 4, 6, and 37, DOJ may submit supplemental
affidavits and a renewed Vaughn index to support its decision to apply Exemption 5.
5. DOJ may redact names and contact information of DOJ employees
before producing Item 10.
Last, the court considers Item 10, which is titled “Expertise in the Civil Division.” The
Vaughn index describes Item 10 as: “DOJ intranet page identifying 500 different legal issues
and statutes, along with Civil Division attorneys with expertise and experience in those areas;
intended to facilitate discussion among DOJ attorneys and serve as a reference to DOJ
attorneys.” Doc. 20-3 at 4 (Vaughn index # 10).
DOJ invokes Exemptions 5 and 6 to prevent disclosure of Item 10. DocuFreedom
advances no argument for disclosing Item 10. But, the court proceeds with its analysis because
“the burden is on the agency to show that nondisclosed requested material falls within a stated
exemption.” Stein, 134 F. Supp. 3d at 468 (citations omitted). Here, the court concludes that
Item 10 is not covered by Exemption 5 because it was not prepared in anticipation of litigation.
Instead, the Vaughn index suggests that Item 10 is nothing more than a reference directory of
DOJ attorneys. At most, Item 10 merely serves as a tool to identify issues—and associated DOJ
attorneys—who provide legal guidance on specified topics.
In the alternative, DOJ asks the court to permit it to redact names and contact information
of DOJ employees before any production under Exemption 6. The court grants DOJ’s request.
“Exemption 6 of FOIA excuses disclosure of ‘personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy.’”
Integrity Comm., 501 F.3d at 1232 (quoting 5 U.S.C. § 552(b)(6)). “Similar files” extends
23
broadly to “detailed Government records on an individual which can be identified as applying to
that individual.” Id. (quoting U.S. Dep’t of State v. Washington Post Co., 456 U.S. 595, 602
(1982)) (further citations omitted). DOJ may redact information under Exemption 6 and then
disclose Item 10 to DocuFreedom when it submits its supplemental materials to the court. If,
after review, DocuFreedom does not explicitly disclaim a challenge to these redactions, the court
will address the propriety of DOJ’s redactions when it addresses the remaining disputed items.
B.
Ms. McFadden’s Emails
DocuFreedom also has requested any emails to and from Ms. McFadden about
DocuFreedom’s FOIA request. DOJ provided DocuFreedom with 169 pages of emails and made
46 redactions to those emails. DOJ asserts the redactions were proper under FOIA Exemptions 5
and 6. The court considers the parties’ arguments about the redactions, below.10
1. The deliberative process privilege.
DOJ contends that it redacted several emails because they include internal discussion and
deliberations about DocuFreedom’s FOIA requests. The “deliberative process privilege”
exempts documents “that reflect how decisions are made.” Stewart v. U.S. Dep’t of Interior, 554
F.3d 1236, 1239 (10th Cir. 2009). This privilege shields “documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Integrity Comm., 501 F.3d at 1226
(quoting Klamath Water, 532 U.S. at 8). Because “officials will not communicate candidly
among themselves if each remark is a potential item of discovery,” this privilege helps “enhance
10
DocuFreedom expressly has disclaimed challenges to several redactions. First, DocuFreedom does not
challenge Redactions 24–46. See Doc. 22 at 14 n.5. Second, DocuFreedom does not challenge Redactions 10 and 11
because they reference an employee taking leave. Doc. 22 at 13 n.4. Also, the Vaughn index includes several
duplicate redactions—a result of DOJ producing iterations of email chains. Thus, Redactions 4, 6–8, 18, and 21 are
not challenged.
24
the quality of agency decisions by protecting open and frank discussion among those who make
them within the Government.” Klamath, 532 U.S. at 8–9.
To invoke this privilege, DOJ must establish that the redacted material is (1)
predecisional and (2) deliberative. Integrity Comm., 501 F.3d at 1227. Material is predecisional
if “prepared in order to assist an agency decisionmaker in arriving at his decision.” Id. (quoting
Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)). But,
postdecisional material, which “set[s] forth the reasons for agency decision[s] already made,” is
not protected. Id. (quoting Renegotiation Bd., 421 U.S. at 184).
Whether material is deliberative is “more difficult to cabin.” Integrity Comm., 501 F.3d
at 1227 (“The cases in this area are of limited help to us, because the deliberative process is so
dependent upon the individual document and the role it plays in the administrative process.”
(quoting Coastal States, 617 F.2d at 867)). Generally, the deliberative process privilege does not
protect “memoranda consisting only of compiled factual material or purely factual material
contained in deliberative memoranda and severable from its context.” Id. (quoting EPA v. Mink,
410 U.S. 73, 87–88 (1973), superseded by statute on other grounds, Pub. L. No. 93–502, 88 Stat.
1561 (1974)). Non-factual materials that express opinions or recommendations, however,
plainly are protected. Id. (citing Sears, Roebuck & Co., 421 U.S. at 150). In the context of this
case, “[e]mail discussions between agency officials about how to answer a FOIA request are
deliberative.” Schmidt, 320 F. Supp. 3d at 1245 (citing Competitive Enter. Inst. v. EPA, 232 F.
Supp. 3d 172, 187 (D.D.C. 2017)).
a. DocuFreedom’s constructive denial argument is unavailing.
DocuFreedom first argues that any email sent more than 30 business days after its FOIA
requests are not predecisional because DOJ already had constructively denied DocuFreedom’s
25
requests. In short, DocuFreedom contends, DOJ decided not to release the records by issuing no
response within the statutory time limit.
DocuFreedom cites no case law for this proposition, nor does the court find any.
DocuFreedom’s argument is not persuasive. In FOIA cases, constructive exhaustion permits a
requester to seek judicial review without an administrative appeal. For example, in Barvick v.
Cisneros, 941 F. Supp. 1015 (D. Kan. 1996), plaintiff argued that he was entitled to summary
judgment because the government agency did not respond to his FOIA request within the
statutory time limit. Id. at 1019. The court rejected plaintiff’s argument, explaining that the
government’s timeline to respond was to “allow a FOIA requester, who has not yet received a
response from the agency, to seek a court order compelling the release of the requested
documents.” Id. (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 64 (D.C. Cir. 1990)). The
government’s failure to respond within the timeline set by FOIA thus enables a requester to seek
review by the courts; but, it does not go so far as to operate as a waiver of the deliberative
process privilege.
b. Redactions 1–3, 5, 9, 16, 17, 19, 22–23 are exempt under the
deliberative process privilege.
After reviewing the Vaughn index, DOJ’s declarations, and the parties’ arguments, the
court concludes that the deliberative process privilege applies to the challenged redactions.
Redactions 1–3, 5, 9, 16, 17, 19, 22–23 involve discussions between JMD employees about
responding to DocuFreedom’s FOIA request.11 For example, Redactions 2 and 3 include draft
responses between JMD employees of a letter to accompany DOJ’s response to DocuFreedom.
11
DocuFreedom does not expressly challenge each listed redaction. But, the onus is on the agency to justify
exemption. The court thus lists any redaction not expressly disclaimed by DocuFreedom. The only redaction that
does not fall under the deliberative process privilege is Redaction 20. The court finds the redaction proper under
Exemption 6 because, as the Vaughn index explains, it references an employee’s personal health. And
DocuFreedom raises no argument to support disclosure.
26
See Schmidt, 320 F. Supp. 3d at 1245 (concluding deliberative process privilege applies to
protect deliberations about how to answer FOIA questions). And, Redactions 12–15 involve a
legal discussion between OIP attorneys and Ms. Tang about how to respond to DocuFreedom’s
FOIA request—e.g., what exemptions might apply. These discussions fall squarely under the
deliberative process privilege—namely, the discussions would demonstrate the “give-and-take of
the consultative process” in fashioning responses to FOIA requests. Coastal States, 617 F.2d at
866.
DocuFreedom asserts that DOJ has redacted the “grumblings” and “complaints” about
responding to the FOIA request. This argument is speculative. Nothing in the unredacted
portions of the emails suggests such a conclusion. And, where DocuFreedom “has not produced
contradictory evidence or even evidence that defendant has used this justification in bad faith,”
the use of the deliberative process privilege by DOJ is proper. Schmidt, 320 F. Supp. 3d at 1245.
In this case, the Vaughn index satisfies the court that DOJ’s decision to invoke Exemption 5 is
plausible. Stein, 134 F. Supp. 3d at 468–69. Thus, DOJ has invoked the deliberative process
privilege properly for Redactions 1–3, 5, 9, 16, 17, 19, 22–23.
IV.
Conclusion
For reasons explained above, the court grants DOJ’s Motion for Summary Judgment
(Doc. 19) in part and denies it in part. The court concludes that DOJ has fulfilled its duties under
FOIA for Items 2–3, 5, 7–9, 11–13, and 90 and the redactions to Ms. McFadden’s emails. But,
the court concludes it lacks sufficient information to decide if DOJ properly exempted Items 4, 6,
10, 37, 39, and 49–50. The court thus denies summary judgment—without prejudice—for DOJ
on these items. The court thus orders DOJ to produce Items 4, 6, 10, 37, 39, and 49–50, for in
camera review within 30 days of this Order’s entry. DOJ also may file supplemental affidavits
27
and a renewed Vaughn index to support its exemptions within the 30-day time limit. DOJ must
confine any supplementation it chooses to provide to the issues discussed in this Order. Once
DOJ submits its supplemental material, DocuFreedom has 30 days to file a response. The court
will not allow a reply.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant United States
Department of Justice’s Motion for Summary Judgment (Doc. 19) is granted in part and denied
in part.
IT IS FURTHER ORDERED THAT defendant must produce to the court Items 4, 6,
10, 37, 39, and 49–50, for in camera review within 30 days of this Order’s entry. The court will
rule on the applicability of the exemptions at a later day.
IT IS FURTHER ORDERED THAT defendant must file supplemental affidavits and a
renewed Vaughn index to support its exemptions within the 30-day time limit. DOJ must
confine any supplementation it chooses to provide to the issues discussed in this Order. Once
DOJ submits its supplemental material, DocuFreedom has 30 days to file a response. The court
will not allow a reply.
IT IS FURTHER ORDERED THAT defendant Karen McFadden is dismissed from
this case.
IT IS SO ORDERED.
Dated this 16th day of August, 2019, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?