Worldnetdaily.com, Inc. v. U.S. Department of Justice

Citations: 215 F. Supp. 3d 81; 2016 U.S. Dist. LEXIS 144768; 2016 WL 6126264Docket: Civil Action No. 15-0549 (ABJ)

Court: District Court, District of Columbia; October 19, 2016; Federal District Court

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Worldnetdaily.com, Inc. filed a lawsuit against the U.S. Department of Justice under the Freedom of Information Act (FOIA) to obtain materials related to the investigation of the October 3, 2013 fatal shooting of Miriam Carey by U.S. Secret Service agents and Capitol Police officers. The Department of Justice conducted a search, produced some records (partially redacted), and withheld several documents, including a 96-page memorandum (the "Declination Memo") recommending against prosecution, 30 audio and video recordings of witness interviews, and 27 aerial photographs of the White House complex. The defendant moved for summary judgment, asserting that in FOIA cases, the agency must justify its actions and that courts typically resolve these matters through summary judgment. The court must view evidence favorably towards the nonmoving party unless the plaintiff fails to show bad faith from the agency, in which case summary judgment may be based solely on agency declarations.

In its opposition, the plaintiff expressed satisfaction with the agency's search efforts and did not challenge the withholding of the aerial photographs or audio/video records. The primary issue for the court is whether the Declination Memo was properly withheld under FOIA's Exemption (b)(5), which protects attorney work-product and deliberative process privileges. The defendant argues that the memo is an intra-agency communication related to prosecutorial decision-making. Conversely, the plaintiff contends that the memo represents a final decision to decline prosecution and should not be exempt from disclosure.

The Court ordered the defendant to submit the Declination Memo for in camera review to determine if it is protected by the deliberative process privilege. The Court found that the memo is both predecisional and deliberative, thus qualifying for this privilege, which safeguards inter-agency communications to encourage candid discussions among officials. Specifically, the deliberative process privilege is defined under 5 U.S.C. 552(b)(5) as protecting documents that are generated before a policy decision and reflect the consultative process.

The Declination Memo, which includes recommendations from two Assistant U.S. Attorneys (AUSAs) regarding the decision not to prosecute officers involved in a shooting, was deemed to meet these criteria. The Court rejected the plaintiff's argument that the memo constituted a final decision, clarifying that it merely presented a recommendation for future action rather than a definitive conclusion. The memo's content, as confirmed by the Court's review, supports the notion that it is exempt from disclosure under the Freedom of Information Act (FOIA), consistent with established case law that protects the deliberative process leading to prosecutorial decisions.

The Declination Memo, dated May 22, 2014, predates the United States Attorney's formal decision to decline prosecution of the officers involved in the Carey shooting, which was issued on July 10, 2014. This timing establishes the memo as predecisional, contradicting the plaintiff's assertion that it merely explains the decision. The memo contains candid evaluations from the AUSAs regarding witnesses, evidence, and applicable law, which could hinder future decision-making transparency if disclosed. The plaintiff's argument that only non-exempt portions could be segregated from the memo is rejected, as the Court finds no reasonable way to redact it. Ultimately, the Court determines that the Declination Memo is both predecisional and deliberative, thus protected by the deliberative process privilege, granting the defendant summary judgment. The Court does not address the defendant's claim of attorney work-product privilege, as the deliberative process privilege suffices to protect the memo from disclosure.