Karnoski et al v. Trump et al

Filing 666

ORDER RE: IN CAMERA REVIEW OF DOCUMENTS 645 646 654 661 . The Court ORDERS that documents defined in this order be produced to Plaintiffs not later than January 28, 2021. The Court further finds that the documents (PrivWi thhold 9185-9289) attached to the Easton Declaration (Dkt. No. 574 , Ex. 1) were not properly withheld under the DPP. The Government is therefore ORDERED to produce these documents by January 28, 2021. Signed by Judge Marsha J. Pechman. (PM)

Case 2:17-cv-01297-MJP Document 666 Filed 01/19/21 Page 1 of 7

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RYAN KARNOSKI, et al.,
Plaintiffs,

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v.

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CASE NO. C17-1297 MJP
ORDER RE: IN CAMERA REVIEW
OF DOCUMENTS SUBMITTED
DECEMBER 1, 9, 11, AND 23, 2020
(DKT. NOS. 645, 646, 654, 661)

DONALD J TRUMP, et al.,

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Defendants.

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This matter comes before the Court upon Defendants’ four recent submissions of

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documents for in camera review (Dkt. No. 645, 646, 654, and 661), filed in response to the

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Court’s recent Orders on Defendants’ assertion of the deliberative process privilege. (Dkt. Nos.

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629, 641). After careful examination of each document submitted for in camera review, the

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Court ORDERS that the documents identified below be produced to Plaintiffs not later than

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January 28, 2021.

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Background

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This Court has previously set out the process for analyzing Defendants’ in camera

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submissions and how the analysis fits into the Parties’ theories of the case. Briefly, before a

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document can be subject to a valid deliberative process privilege (“DPP”) claim, it must be both

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predecisional and deliberative. See National Wildlife Federation v. U.S. Forest Service, 861 F.

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2d 1114, 1117 (9th Cir. 1988). If it meets that threshold, then the document is subject to a valid

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DPP claim. At that point, the Court applies the balancing test set forth in FTC v. Warner

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Commc’ns Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). In Warner, the Court held that an

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otherwise protected DPP document could be ordered produced after considering four factors: (1)

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the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in

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the litigation; and (4) the extent to which disclosure would hinder frank and independent

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discussion regarding contemplated policies and decisions. The Ninth Circuit previously found

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that the second and third Warner factors—the availability of other evidence and the

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government’s role in the litigation—favor Plaintiffs here. Karnoski v. Trump, 926 F.3d 1180,

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1206 (9th Cir. 2019). Regarding the first and fourth Warner factors, however, the Circuit

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concluded that “the current record is insufficient to establish relevance” and the fourth factor in

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particular “deserves careful consideration, because the military’s interest in full and frank

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communication about policymaking raises serious—although not insurmountable—national

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defense interests.” Id. With this background, the Court turns to the specific documents at issue

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here: The Government’s most recent submissions, provided to the Court on four dates in

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December 2020.

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A. December 1, 2020 Submission

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The documents submitted on December 1, 2020 bear Priv/Withhold document numbers

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of 14011-14110. They can be broken into three categories of documents. The first category

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consists of drafts and subsequent iterations of transmittal messages from the Secretary of

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Defense to the President, beginning with a draft dated December 17, 2017. These documents

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bear Priv/Withhold numbers 14012-44. The initial draft transmittal document substantially

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precedes the final action by the Panel of Experts and precedes the submission of the actual

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documents—which took place on February 22, 2018—by over two months. The drafts are not

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signed. Apparently, no final transmittal letter was sent to the President and, excepting a pdf copy

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bearing some handwritten notes by Secretary Mattis, participants and authors are not

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immediately identifiable. A White House Fellow named Rachael Gleischman is identified not by

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document but by accompanying declaration. (Dkt. No. 648, Declaration of Robert E. Easton, at

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2.)

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These documents arguably qualify as being subject to a valid DPP claim. They certainly

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predate the February 22, 2018 decision. They contain limited substantive discussion, and in that

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regard, might be considered part of a deliberative process. These transmittal documents,

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however, were not used, and are primarily transmittal documents. The documents do not

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identify the writer, minimizing risk of attribution to specific persons. Accordingly, danger to the

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deliberative process is not significant.

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On the other hand, these documents are relevant to the Plaintiffs’ case. The conveyance

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letter drafts begin on December 12, 2017, before the Panel of Experts’ work was completed. The

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transgender review process was allegedly completed when the Policy was transmitted to the

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President on February 22, 2018, more than 2 months after the initial transmittal draft. Yet, the

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initial draft purports to include definitive conclusions allegedly reached by the Secretary of

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Defense and the Panel of Experts. This is material to the Plaintiffs’ theory of the case that the

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conclusion of the study was preordained by the President’s tweets, rather than by any in-depth

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study of the issues. The Warner balancing test requires production, excepting Priv/Withhold

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documents 14039-14042, which specifically contain handwritten notes by Secretary Mattis. Out

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of an abundance of caution and in deference to expressed military concerns, the Court will not

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require Priv/Withhold 14039-14044 to be produced, but all other documents in this category

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shall be produced.

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The second set of documents produced for in camera review in the December 1, 2018

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batch consists of drafts of the Summary of Recommendations of the Panel of Experts. These are

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Priv/Withhold document numbers 14045-14077. Under the test in National Wildlife Federation,

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these documents would be considered subject to a valid DPP claim, just as draft Environmental

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Impact statements were in that case. Applying the Warner test, the Court declines to order

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production, because the relevance of draft Executive Summaries, prepared presumably after the

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conclusions were reached about the Policy itself, is marginal.

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The third set of documents produced for in camera review in the December 1, 2018 batch

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consists of outlines that were later used for the DoD Report submitted to the President on

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February 22, 2018. These documents bear Priv/Withhold document numbers 14078-14110.

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These documents are subject to a valid DPP claim. They relate to the final Policy and

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include information regarding testimony of witnesses who testified before the Transgender

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Panel. Application of the Warner factors supports production. First, the documents are highly

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relevant to Plaintiff’s claims, as they shed light on the factual information actually presented to

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the Transgender Panel. Second, production will not harm the military in its present or future

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decision-making process, because it is not expressing the candid views of any witnesses or

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members of the Panel – rather, these pages simply discuss materials presented to the Panel in an

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unattributed way, and the Panel’s decision methodology.

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B. December 9, 2020 Submission

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The December 9, 2020 submission consists of two documents, Priv/Withhold 14111-15

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and 9339-40. The latter document is from Secretary Wilkie to Secretaries of the Services and the

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Commandant of the Coast Guard. The memo from Secretary Wilkie (Priv/Withhold 9339-40) is

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not the subject of a valid DPP claim, because it is not deliberative. It is merely a copy of a draft

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order, which contains a minor edit.

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The second document is entitled “Transgender Policy Review—Accessions Medical

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Standards Correlative Comparisons of Disqualifying Conditions.” Priv/Withhold 14111-15. An

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accompanying declaration tied into the document either was not produced, or doesn’t have a

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document identifier tie-in. However, upon review, it appears to be an analysis chart that

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identifies the status of recommended changes to the then-existing accessions policy. It is subject

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to a valid DPP claim. Under Warner it is relevant to Plaintiff’s claims, and the impact of

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disclosure on present or future deliberations would be minimal, because the authors are not

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identified, and most of the chart is simply factual recitations, rather than a document expressing

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opinion. These documents shall be produced.

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C. December 11, 2020 Submission.

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The December 11, 2020 submission consists of 13 emails relating to the progress of the

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DoD Panel of Experts. The documents bear Priv/Withhold numbers 14116-37. None of these

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are subject to a valid DPP claim, as they are not deliberative. Rather, the emails advise others on

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the progress of the Panel of Experts’ work, meeting the President’s timetable for release, and the

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impact of court action. Moreover, even if these emails qualified for DPP protection, Warner

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factors dictate release. These documents could be relevant to Plaintiffs’ claim of preordination.

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Release of these documents would not seriously impair the deliberative process. Several of the

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participants of the email conversations appear to be quite aware that emails could be released

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and, rather than responding to certain issues in writing, suggested telephonic or in-person follow

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up. The documents in the December 11 submission shall be produced to Plaintiffs.

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D. December 23, 2020 Submission

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The December 23, 2020 submission consists of 31 documents relating to the development

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of the Carter Policy. These documents bear Priv/Withhold numbers14138-14226 and are not as
neatly categorized as other submissions.
1. Priv/Withhold 14138-141 and 14160-65 (partial duplicate)
These documents are substantive progress reports on the Panel’s work. They document

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differences between the service chiefs, and also define questions for input from Secretary Carter.

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They are DPP eligible. In light of specific references to positions taken by the individual service

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branches and recommendations from specifically identified individuals, release of these

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documents could have a significant impact on candid and frank discussions in the future.

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Moreover, because these documents relate to the Carter Policy, they are less relevant to the

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Plaintiff’s case. Defendants will not be required to produce these documents.

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2. Priv/Withhold 14150-59 and 14166-75 (duplicate)

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These documents are proposed talking points for the policy rollout. They are not

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deliberative and indeed, are designed to be a product for public consumption. As such, even if

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they were subject to DPP, release would not impair this or future deliberation processes, and thus

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under the Warner test, should be produced to Plaintiffs.

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3. Priv/Withhold 14176-1414220
These documents are email chains regarding an 18-month stability period for accessions.

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The documents reflect the conflicting viewpoints being offered to the decision-makers. These

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qualify for DPP status, and under Warner are less relevant to Plaintiffs due to their relationship

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with the Carter policy, but could negatively impact the deliberative process if released.

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Defendants will not be required to produce these documents.

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4. Priv/Withhold 14221-26
These are email strings relating to specific concerns raised by the then Army Chief of
Staff, and responses to those concerns. They have marginal relevance to the current case

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because this relates to the Carter policy, and release could impact future deliberative processes.

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Under Warner, Defendants will not be required to produce these documents.

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Conclusion
The Court therefore ORDERS that documents so defined above be produced to Plaintiffs

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not later than January 28, 2021. The Court further finds that the documents (PrivWithhold

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9185-9289) attached to the Easton Declaration (Dkt. No. 574, Ex. 1) were not properly withheld

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under the DPP. The Government is therefore ORDERED to produce these documents by

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January 28, 2021.

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The clerk is ordered to provide copies of this order to all counsel.
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Dated January 19, 2021.
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A
Marsha J. Pechman
United States Senior District Judge

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ORDER RE: IN CAMERA REVIEW OF DOCUMENTS SUBMITTED DECEMBER 1, 9, 11, AND 23, 2020
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