Am. Ctr. for Law & Justice v. U.S. Dep't of Justice
Docket: Civil Action No. 16-2188 (TJK)
Court: Court of Appeals for the D.C. Circuit; September 7, 2018; Federal Appellate Court
Timothy J. Kelly, United States District Judge, is presiding over a case involving the American Center for Law and Justice (ACLJ) and the Department of Justice (DOJ) regarding a Freedom of Information Act (FOIA) request. ACLJ seeks records related to a June 2016 meeting between then-Attorney General Loretta Lynch and former President Bill Clinton aboard an airplane in Phoenix, Arizona, which garnered significant media attention due to its context involving an ongoing DOJ investigation linked to Hillary Clinton's presidential candidacy.
After filing a FOIA request on July 15, 2016, ACLJ initiated this legal action on November 2, 2016, following a lack of response from DOJ. The DOJ acknowledged the request on November 18, 2016, and subsequently produced 413 pages of documents in July and August 2017, including redactions based on FOIA Exemptions 5, 6, and 7(C). ACLJ raised concerns about these redactions during discussions with DOJ, leading to some revisions, but continued to challenge the use of the deliberative-process privilege and the adequacy of the segregation of factual information.
The parties have cross-moved for summary judgment to resolve the disputes over the withheld documents, and the court has decided to grant DOJ's motion in part and deny it in part, while denying ACLJ's cross-motion. DOJ is required to make a supplemental submission and renewed motion by October 9, 2018, with ACLJ's response and cross-motion due by October 23, 2018.
ACLJ contended that DOJ's search in response to a FOIA request was inadequate, despite prior agreement that only DOJ's redactions were in question. ACLJ noted that it had received a document from another agency that it believed should have been produced by DOJ. In response, DOJ offered additional information regarding its search terms and withholdings. Under Federal Rule of Civil Procedure 56, summary judgment is to be granted if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Most FOIA cases can be resolved through summary judgment. FOIA, enacted in 1966, aims to enhance transparency in government actions, requiring agencies to disclose requested records unless they fall under one of nine exemptions. Agencies must demonstrate a good faith effort in searching for records, supported by detailed affidavits outlining search methodologies. The search's adequacy is judged by a reasonableness standard favoring disclosure. If an agency claims exemptions, it bears the burden of justifying the withholding, and courts evaluate the justifications to ensure they are detailed and plausible, not generalized. Additionally, any reasonably segregable portion of a record must be disclosed, and courts are obligated to confirm compliance with this requirement prior to approving withholdings.
The Court grants the DOJ's motion for summary judgment, except regarding two specific documents, for which DOJ must provide further justification for its redactions. The ACLJ's motion is denied. ACLJ contends that DOJ's search was inadequate, citing the discovery of a responsive document through a separate FOIA request, and asserting that DOJ employed overly limited search terms and narrowed the search timeframe improperly. However, the Court finds that ACLJ waived its right to contest the adequacy of the search in a prior Status Report dated 9/27/17. The Court elaborates on the concepts of waiver and forfeiture in litigation, noting that parties can waive rights either through intentional relinquishment or failure to timely assert them. It emphasizes that waiver in civil cases, particularly after the parties have appeared in court, can occur with clear evidence of knowing and voluntary relinquishment. Furthermore, written status reports function similarly to pretrial conferences, allowing parties to narrow issues and potentially waive others. Given these principles, the Court concludes that ACLJ’s agreement to narrow the issues in the Status Report constitutes a waiver of its challenge to the search's adequacy.
Holding parties to agreements made in joint status reports aligns with FOIA's intent, as highlighted in Judge McFadden's opinion, which emphasizes that plaintiffs are expected to narrow their FOIA requests. In DeFraia v. CIA, it was established that narrowing a request in a joint status report supersedes broader requests in the complaint. Similar rulings in Gilman v. DHS and People for Am. Way Found. v. DOJ support this principle, allowing plaintiffs to narrow requests even without the defendant's consent.
In this case, ACLJ waived its right to challenge the adequacy of the government's search by agreeing in the 9/27/17 Status Report to limit the dispute to the government's withholding of documents. The report, signed by ACLJ's counsel, explicitly indicated that the parties had resolved the adequacy issue and would focus on the remaining objections to DOJ's withholdings. The court adopted the proposed briefing schedule based on this agreement.
Although waivers are generally upheld, courts may refuse to enforce them if doing so would be unjust, as seen in criminal appeals involving ineffective assistance of counsel or procedural errors. Similarly, in civil cases, issues narrowed in a final pretrial order may be modified to prevent manifest injustice. In FOIA cases, reintroducing waived issues requires a showing of good cause, as demonstrated in Shapiro v. DOJ.
ACLJ now contends that it abandoned its previous agreement after receiving a responsive document from another agency that had not been produced by DOJ.
ACLJ claims it had "no reason to believe" that the DOJ's search was inadequate until a later time. The Court finds this argument unconvincing, stating that the adequacy of a government search is a common issue in FOIA cases. ACLJ had multiple opportunities to address the DOJ's search methods during discussions and later indicated it would not challenge the search’s adequacy. There is no evidence suggesting that ACLJ was misled about the search's scope, making the DOJ's failure to produce one specific document irrelevant. The Court emphasizes that such failures do not inherently indicate an unreasonable search, referencing the case of Iturralde v. Comptroller of Currency. The DOJ's inability to locate the document was due to a technical glitch.
ACLJ challenges the DOJ’s withholdings under Exemption 5 on three grounds: first, the lack of a Vaughn index provided by DOJ; second, claims of improper redactions in eleven specified documents; and third, the assertion that DOJ's redactions generally do not comply with FOIA's segregability requirement by withholding factual material not covered by the deliberative-process privilege.
Regarding the Vaughn index, while it is typically required in deliberative-process privilege cases, the Court notes that it is not mandated in every FOIA case. The focus should be on the functionality of the index rather than its form. The DOJ has supported its claims of privilege through a declaration outlining the withheld information categories, rather than solely relying on a Vaughn index.
The supplemental declaration provided by the DOJ includes a control number for each redacted document submitted to ACLJ, categorized accordingly. DOJ has also filed copies of 11 specific documents that ACLJ has challenged regarding their redactions. The Court finds that DOJ has sufficiently demonstrated its application of the deliberative-process privilege for these documents, thus negating the need for a Vaughn index, except for two noted exceptions.
The 11 disputed documents have redactions made under Exemption 5, citing the deliberative-process privilege, which protects documents that are both predecisional and deliberative. This privilege encourages open communication within agencies by safeguarding discussions about agency policies from public disclosure. Although the D.C. Circuit has not specifically addressed this privilege concerning public-relations matters, the prevailing view in the district is that it also covers agency discussions on public statements, including talking points.
The Court agrees with this interpretation, asserting that if such deliberations were subject to FOIA requests, it would inhibit agencies’ interactions with the press, counteracting FOIA's transparency goals. However, agencies must provide context for their deliberations and cannot merely label documents as "draft press releases."
In this case, the DOJ's affidavits substantiate its redactions, as indicated in email communications among DOJ officials discussing responses to media inquiries, along with guidance provided to the FBI regarding similar inquiries. The Court concludes that DOJ's redactions align with the deliberative process concerning media responses. ACLJ's arguments for lifting these redactions, including the public's need for the information, were found unpersuasive, as the D.C. Circuit has clarified that the qualified nature of the privilege does not negate its application in FOIA cases.
Attorney work product has a qualified protection from discovery in civil litigation, but this qualification does not apply under the Freedom of Information Act (FOIA). ACLJ contends that the Department of Justice (DOJ) has improperly redacted "talking points" related to Attorney General Lynch's June 28 press conference. Several emails reveal different drafts of these talking points, which were finalized before the press conference. An official confirmed that Lynch adhered to these points during her remarks. Following the press conference, the talking points were forwarded within the DOJ for use in anticipating questions.
ACLJ argues that the "final" versions of the talking points, as well as those shared post-press conference, were not predecisional and thus should not be redacted. However, this argument overlooks the nature of talking points, which are typically preparatory documents for decision-makers. While some talking points may be intended for literal adherence, they are generally not the conclusive statements of senior officials. The context of the June 28 talking points suggests they served merely as subordinate advice, with the actual public statements made by Lynch being the definitive record.
The deliberative-process privilege exists to protect internal agency discussions, not to depend on whether the advice was ultimately followed. The confidentiality of drafts is essential for candid analysis, regardless of their final use.
A privilege dependent on subsequent events, like the evolution of a draft into a final agency position, is considered uncertain and therefore less valuable, as established by Supreme Court precedent. The deliberative-process privilege should be evaluated based on the document's intent at creation rather than retroactively. A predecisional document's privilege is only waived when it is published or officially adopted by the agency. In this context, the talking points developed for Attorney General Lynch remain protected despite her adherence to them, as there is no guarantee she would have followed them verbatim. Talking points are often utilized informally, making it unlikely that an official's reliance constitutes formal adoption. Furthermore, forwarding the talking points in subsequent emails does not negate their protected status, as post-decisional documents can still reflect pre-decisional deliberations.
However, two documents lack sufficient context for a valid assessment of the deliberative-process privilege. The first document, an email from July 11, 2016, contains fully redacted talking points, and the Court cannot ascertain their purpose, intended audience, or subject matter. Thus, the Department of Justice (DOJ) failed to provide the necessary context for claiming the privilege. The second document, an email chain from June 30, 2016, involves a request for an interview with Attorney General Lynch, and although the DOJ had determined its response, the nature of the subsequent internal emails is unclear regarding their predecisional status, indicating they may not qualify for the privilege as required.
The Court finds that the information presented is inadequate for a definitive ruling and grants summary judgment to the Department of Justice (DOJ) on the matter, while requiring a supplemental declaration and renewed motion for summary judgment concerning specific documents (0.7.9269.5105 and 0.7.9269.6094). The Court addresses the issue of segregability as raised by the American Center for Law and Justice (ACLJ), emphasizing that agencies must justify any non-segregability claims without disclosing exempt material. DOJ has provided declarations functioning as a Vaughn index, asserting that it performed a thorough review of the documents and released all segregable information. The Court accepts this as sufficient to establish a presumption of compliance with the Freedom of Information Act (FOIA) requirements.
ACLJ's challenge focuses on the nature of the materials in question, arguing that factual content should be distinct from privileged opinions. However, the D.C. Circuit precedent indicates that certain factual information may still be protected if its release would compromise the deliberative process. DOJ contends that separating factual material from the discussing documents would reveal internal deliberations on media responses, a claim the Court finds plausible. Thus, the Court leans toward accepting DOJ's position on the intertwined nature of the factual and deliberative content in the documents.
The court agrees with the Department of Justice (DOJ) that the deliberative process privilege applies to employees' selection and presentation of facts, as established in Elec. Frontier Found. v. DOJ. The American Center for Law and Justice (ACLJ) has failed to provide sufficient reasons to challenge this privilege, and thus has not overcome the presumption favoring DOJ. As a result, the court finds that DOJ meets the segregability requirement under the Freedom of Information Act (FOIA).
In its conclusion, the court grants in part and denies in part DOJ's motion for summary judgment, specifically denying it regarding documents with control numbers 0.7.9269.5105 and 0.7.9269.6094, while granting it for all other documents. ACLJ's cross-motion for summary judgment is denied entirely. The court orders DOJ to file a detailed supplemental declaration regarding its claim of deliberative-process privilege for the specified documents by October 9, 2018, along with a renewed motion for summary judgment. ACLJ must respond by October 23, 2018, with a memorandum limited to five pages.
The court acknowledges that during prior proceedings, ACLJ had indicated potential issues with Exemption 6 but has since abandoned this challenge after reviewing DOJ's supporting declaration. This leaves DOJ entitled to summary judgment on this exemption. ACLJ claims DOJ omitted a crucial document, but the court finds that ACLJ's own submissions do not substantiate this claim. ACLJ's argument regarding the applicability of the deliberative-process privilege to an FBI email is also addressed, affirming that Exemption 5 covers inter-agency communications, including those between DOJ and the FBI. The absence of control numbers in submitted documents does not hinder the court's ability to rule on the motions at hand.
