REGGIE B. WALTON, District Judge.
The plaintiff, Judicial Watch, Inc., brings this action against the United States Department of Justice ("DOJ") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2006), demanding
On May 15, 2009, the DOJ filed a Notice of Voluntary Dismissal as to three defendants and a Motion for Default Judgment as to a fourth defendant in United States v. New Black Panther Party for Self-Defense (the "New Black Panther Party case"), an action filed in the United States District Court for the Eastern District of Pennsylvania by the Civil Rights Division of the DOJ pursuant to Section 11(b) of the Voting Rights Act, 42 U.S.C. § 1973i(b) (2006). Def.'s Mem. at 2. The district court granted the government's motion, and enjoined one of the defendants, Minister King Samir Shabazz, from displaying a weapon within 100 feet of any open voter polling location on any election day in Philadelphia, Pennsylvania, and from otherwise violating 42 U.S.C. § 1973i(b). Id.
By letter dated May 29, 2009, the plaintiff in this case, a "non-profit, educational foundation" that purports "to promote integrity, transparency, and accountability in government," Compl. ¶ 3, submitted a FOIA request to the DOJ seeking four categories of records related to the New Black Panther Party case, Def.'s Facts ¶ 1. In particular, the plaintiff requested that the DOJ produce the following:
Def.'s Mem., Exhibit ("Ex.") 3, (Declaration of Nelson D. Hermilla ("Hermilla Decl.")), Ex. A at 1-3. By letter dated July 15, 2010, the DOJ informed the plaintiff that there likely would be a delay in processing the request because it had received multiple FOIA requests concerning the same subject matter. Def.'s Mem. at 3. Several months later, by letter dated January 15, 2010, the DOJ further advised the plaintiff that to facilitate its response, the DOJ had interpreted the scope of the FOIA request as "limited to records concerning the [DOJ's] decision to seek a dismissal of [the] defendants" in the New Black Panther Party case. Id. The plaintiff ultimately agreed with this interpretation. Id.; Compl. ¶ 8.
Searches for responsive material were conducted by several offices within the DOJ, including the Civil Rights Division, the Office of the Attorney General, the Office of the Deputy Attorney General, the Office of the Associate Attorney General, the Office of Public Affairs, the Office of Legislative Affairs, the Office of Legal Policy, the Office of Intergovernmental and Public Liaison, and the Departmental Executive Secretariat. Def.'s Facts ¶¶ 3-5; see Def.'s Mem., Ex. 3 (Hermilla Decl.) ¶¶ 5-8; Def.'s Mem., Ex. 4 (Declaration of Vanessa R. Brinkmann ("Brinkmann Decl.")) ¶¶ 6-27. The DOJ's Office of Information Policy ("OIP") processed the request on behalf of several of the offices listed above. Def.'s Mem., Ex. 4 (Brinkmann Decl.) ¶ 4.
The results of these searches were communicated to the plaintiff by a series of letters during the first several months of 2010. On January 15, 2010, the OIP informed the plaintiff that some offices within the DOJ had completed their searches, and that all of the records located were being withheld in their entirety pursuant to Exemption 5 of the FOIA. Def.'s Mem. at 4; Compl. ¶ 9. The plaintiff administratively appealed this determination by letter dated January 29, 2010; however, due to an inadvertent error, this letter was misdirected and the OIP did not acknowledge receipt of the appeal until April 13, 2010. Compl. ¶ 13.
By letter dated February 9, 2010, the Civil Rights Division produced some records to the plaintiff, id. ¶ 12, which included "[c]opies of pleadings and filings related to" the New Black Panther Party case, "[c]opies of e[-]mail and correspondence from the court related to" the case, and "[l]etters to the [d]efendants from the Department of Justice," Def.'s Mem., Ex. 3 (Hermilla Decl.), Ex. C at 2. The DOJ further advised the plaintiff that it would be withholding other records pursuant to FOIA Exemptions 5 and 7. Def.'s Mem. at 4. By letter dated March 26, 2010, the plaintiff administratively appealed the response of the Civil Rights Division to the OIP. Id. On that same day, the OIP sent a letter to the plaintiff stating that no responsive records were located in the searches conducted by the Office of Legislative Affairs and the Office of Intergovernmental and Public Liaison. Compl. ¶ 11.
On May 24, 2010, while the two administrative appeals were still pending, the
Courts will grant a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When an agency seeking "summary judgment on the basis of... agency affidavits" asserts through those affidavits that it has properly withheld documents or parts of documents pursuant to a FOIA exemption, the agency's affidavits must "describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). Agency affidavits submitted in the FOIA context "are accorded a presumption of good faith." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991).
The "`burden is on the agency' to show that the requested material falls within a FOIA exemption." Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992) (quoting 5 U.S.C. § 552(a)(4)(B)). Consistent with congressional intent tilting the scales in favor of full disclosure, courts impose a
Exemption 5 provides that "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" are not subject to disclosure under the FOIA. 5 U.S.C. § 552(b)(5). In order for an agency to prevail under the privilege against disclosure of an agency document, the document's "source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it."
Here, the DOJ relies on the attorney work-product privilege as the basis for withholding all but one of the records.
As recently stated by the District of Columbia Circuit, "[t]he work-product doctrine shields materials `prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).'" McKinley v. Bd. of Governors of the Fed. Reserve Sys., 647 F.3d 331, 341 (D.C.Cir. 2011) (citation omitted). "[I]t is essential" to the litigation process "that a lawyer work with a certain degree of privacy, free from unnecessary intrusion," Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369-70 (D.C.Cir.2005) ("Judicial Watch I") (quoting Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947)), and the work-product privilege "provides ... a `zone of privacy' within which to think, plan, weigh facts and evidence, candidly evaluate a ... case, and prepare legal theories." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 864 (D.C.Cir.1980); see In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir. 1998) ("By ensuring that lawyers can prepare for litigation without fear that opponents may obtain their private notes, memoranda, correspondence, and other written materials, the privilege protects the adversary process.").
While the work-product privilege "protects such deliberative materials... it also protects factual materials prepared in anticipation of litigation." Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C.Cir.1997). Thus, "[a]ny 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 and falls under Exemption 5." Id. Therefore, "factual material is itself privileged when it appears within documents that are attorney work product,"
As noted earlier, the DOJ contends that the vast majority of the records at issue in this case were properly withheld under Exemption 5 as attorney work product. See Def.'s Mem. at 13-19. The DOJ explains that it asserted the work-product "doctrine as to records that themselves are
The plaintiff counters that the DOJ improperly invoked the work-product doctrine. On a general level, the plaintiff states that "from the declarations and the Vaughn index [it] is ... unclear exactly what type of information is being withheld," and thus faults the DOJ's submissions for "not adequately identif[ying] which documents were created by Department employees acting as attorneys and which documents were created by Department employees acting as government officials." Pl.'s Mem. at 15. More specifically, the plaintiff asserts that the DOJ improperly applied the work-product doctrine to a number of individual documents. See id. at 18-19, 21-22, 26. The plaintiff takes particular issue with the withholding of documents created after the DOJ's May 15, 2009 dismissal in the New Black Panther Party case, remarking that "the courts have never found that [the work-product doctrine] can be applied to documents created after litigation has ended for the purpose of explaining a decision." Id. at 16.
After carefully reviewing the declarations and Vaughn indices, the Court finds that the DOJ has appropriately declined to produce all of the withheld records that pre-date the DOJ's dismissal as attorney work product. As an initial observation, based on the descriptions of the documents set forth in the DOJ's submissions, the vast majority of these records fall well within the scope of the work-product doctrine as they include "e-mail messages forwarding and transferring ... draft memoranda and draft pleadings" that "contain analyses, discussions, questions, suggestions, revisions," as well as "requests for additional legal research, requests for supporting evidence for various legal claims, and discussions [about] alternate proposals for claims of relief." Def.'s Mem., Ex. 3 (Hermilla Decl.) ¶ 27(A)(4); see id., Ex. 4 (Brinkmann Decl.) ¶ 56 (indicating that certain documents reflect "attorneys within the litigating office shar[ing] and discuss[ing] the facts of the litigation as they relate to the relevant legal provisions and giv[ing] opinions on available courses of action in the litigation"). Additionally, the withheld records contain "Civil Rights Division attorneys' private thoughts, tactics, strategy, factual and legal analyses, and appraisals of the sufficiency of the available evidence," id., Ex. 3 (Hermilla Decl.) ¶ 27A(9), and reveal the "decisionmaking process, strategies and opinions of litigators and officials within [the Civil Rights Division] on the [New Black Panther Party] litigation," id., Ex. 4 (Brinkmann Decl.) ¶ 55. Some of the withheld records also reflect "not only the work of attorneys `on the ground,' but also the internal discussions and feedback of senior management offices." Id. Notably, all of these documents were created in "the context of a reasonable anticipation of the motion ... filed in" the New Black Panther Party case. Id., Ex. 3 (Hermilla Decl.) ¶ 15; id., Ex. 4 (Brinkmann Decl.) ¶ 40. As the District of Columbia Circuit has observed, attorney work product is "reflected, of course, in interviews, statements,
For the most part, the various arguments raised by the plaintiff are not convincing. To begin with, the Court does not agree with the plaintiff's criticism that the Vaughn indices and declarations are "unclear" about the type of information being withheld. Pl.'s Mem. at 15. A "Vaughn index must adequately describe each withheld document or deletion from a released document, ... must state the exemption claimed for each deletion or withheld document, and explain why the exemption is relevant." Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C.Cir.1998) (internal quotation marks omitted). Here, the DOJ has submitted two Vaughn indices. Def.'s Mem., Ex. 3 (Hermilla Decl.), Ex. D; id., Ex. 4 (Brinkmann Decl.), Ex. J. Upon examining these submissions, the Court generally agrees that they are sufficiently detailed, state the FOIA exemption claimed (in this case Exemption 5), and provide an adequate basis for the Court to assess whether the Exemption was appropriately invoked. Examples of typical entries in the Vaughn indices that describe the withheld information read as follows:
See id., Ex. 3 (Hermilla Decl.), Ex. D at 1, 4, 8, 15, 18-21 (documents 6, 23, 40, 60, and 86-99); id., Ex. 4 (Brinkmann Decl.), Ex. J at 2 (document 105).
The plaintiff also maintains that the work-product doctrine was inappropriately invoked as to documents 13, 14, 36, 44, 49, 50, 55, 57, 67, 68, and 69 because these documents are "informational e[-]mails" that are "nothing more than summaries of the actions that the career lawyers were taking." Pl.'s Mem. at 18-19. The plaintiff posits that these e-mails were improperly withheld because "the recipients [of the e-mails] were not acting as attorneys making decisions in litigation: they were acting as supervisors overseeing and staying informed about the work of their employees."
The plaintiff's remaining arguments pertain to the documents that post-date May 15, 2009, the day that the DOJ filed its notice of voluntary dismissal in the New Black Panther Party case. See Pl.'s Mem. at 16, 19-22, 26; Pl.'s Reply at 5-6.
According to the Vaughn indices and the two declarations submitted by the DOJ, these documents were generally created in the course of recounting specific factual and legal aspects of the New Black Panther Party litigation for the preparation of public statements, responding to an internal investigation about the handling of the case, or briefing officials within the DOJ about the decisionmaking process. See
Similarly, documents 110, 111, and 117a-d are records prepared to brief DOJ senior leadership in response to Congressional and media inquiries; these documents "rehash the litigation process as they peel back to core decisionmaking processes which unfolded during the course of" the New Black Panther party case. Id., Ex. 4 (Brinkmann Decl.) ¶ 51. Document 113, only a portion of which is responsive to the plaintiff's FOIA request, consists of handwritten attorney's notes generated during a Civil Rights Division meeting that "reflect[s] a discussion of a development in the [New Black Panther Party] litigation." Def.'s Mem., Ex. 4 (Brinkmann Decl.), Ex. J. at 3; see also id., Ex. 4 (Brinkmann Decl.) ¶ 40 (explaining that the notes were "created by attorneys in the [DOJ's] senior management offices detailing their discussions on and thoughts about the [New Black Panther Party] litigation"). Document 116 is a "detailed chronology" of the DOJ's involvement in the New Black Panther Party case that presents "an unvarnished presentation of the author's thoughts on litigation decisions, actions, strategies, and recommendations as they developed, as well as ruminations and retrospective analyses on the variety of the decision[-]making process in" several DOJ offices. Id., Ex. 4 (Brinkmann Decl.), Ex. J at 3. Finally, document 107 is an e-mail sent on May 16, 2009, by an official in the Office of the Associate Attorney General to three other DOJ officials that transmitted to them the court papers filed in the New Black Panther Party case, "brief[s the] recipients on the nature of the relief ... [, and] provides additional comment and characterization of the relief sought." Id., Ex. 4 (Brinkmann Decl.), Ex. J at 2.
The DOJ's argument with respect to these documents has some force. As outlined above, the materials post-dating May 15, 2009, include assessments of the facts and evidence, discussions of legal strategy, and characterizations of the DOJ's internal deliberations and decisionmaking process in the New Black Panther Party litigation. Def.'s Mem., Ex. 3 (Hermilla Decl.), Ex. D at 16-21; id., Ex. 4 (Brinkmann Decl.), Ex. J at 2-4. The documents reiterate and memorialize information that is itself attorney work product, and in that sense are arguably seen as work product in their own right. See Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 736 F.Supp.2d 202, 210 (D.D.C.2010) (determining that e-mail messages sent after a prosecution concluded were appropriately withheld as attorney work product because the e-mails "contained internal deliberations that included consideration of privileged attorney work[]product from the prior prosecution"). Moreover, disclosing
On the other hand, in light of the circumstances in this case, it is difficult to see how these documents were "prepared or obtained because of the prospect of litigation," which is "the testing question" the Court must answer in evaluating the DOJ's work-product claim. Senate of Puerto Rico, 823 F.2d at 587 n. 42; see also SafeCard Servs., 926 F.2d at 1202 ("To meet th[e] standard [of being prepared `in anticipation of litigation'] ... the documents must at least have been prepared with a specific claim supported by concrete facts which would likely lead to litigation in mind." (citing Coastal States, 617 F.2d at 864)). Although an injunction remains in place in the New Black Panther Party case, Def.'s Reply at 12 n. 9, the filing of the motion for voluntary dismissal largely marked the end of the litigation. As such, the documents prepared subsequent to that event were not prepared in contemplation of litigation and are thus outside the scope of the work-product privilege.
Accordingly, the DOJ has adequately justified its withholding of all documents predating the filing of the notice of voluntary dismissal under Exemption 5 as attorney work product, with the exception of document 37a-c. See supra at 210 n. 6. Because the attorney work-product privilege protects from disclosure "the entire contents of [covered] documents—i.e., facts, law, opinion, and analysis," Judicial Watch I, 432 F.3d at 372, segregability is not required, id. at 371-72; therefore, the Court need not consider the DOJ's alternative argument that those documents covered by the privilege are also protected from disclosure by the deliberative-process privilege. See Def.'s Mem. at 19-30.
The deliberative-process privilege exists to protect from disclosure "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, Roebuck, 421 U.S. at 150, 95 S.Ct. 1504 (internal quotation marks omitted). It is designed to promote "candid discussion within the agency," and improve its decisionmaking process, which advances "the agency's ability to perform its functions." Formaldehyde Inst. v. Dep't of Health & Human Servs., 889 F.2d 1118, 1122 (D.C.Cir.1989) (citation omitted). The privilege ensures that government agencies are not "forced to operate in a fishbowl." Petroleum Info. Corp. v. Dep't of Interior, 976 F.2d 1429, 1434 (D.C.Cir. 1992).
To qualify for protection under the deliberative-process privilege, "an agency's materials must be both `predecisional' and `deliberative.'" Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C.Cir.2002). "A document is `predecisional' if it precedes, in temporal sequence, the `decision' to which it relates." Senate of Puerto Rico, 823 F.2d at 585. "Material is deliberative if it `reflects the give-and-take of the consultative process.'" Petroleum
In light of the Court's conclusions regarding the DOJ's attorney work-product claims, and as discussed earlier, see supra note 6, the documents remaining at issue are the records post-dating the filing of the motion for voluntary dismissal as well as document 37a-c. As to this former category, post-decisional documents may still be covered under the deliberative-process privilege to the extent they "recount or reflect predecisional deliberations." Judicial Watch, Inc. v. U.S. Dep't of Treasury, 796 F.Supp.2d 13, 31, Civil Action No. 09-1508(BAH), 2011 WL 2678930, at *14 (D.D.C. July 11, 2011) (citing Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 658 F.Supp.2d 217, 234 (D.D.C.2009)). Indeed, "[i]t would exalt form over substance to exempt documents in which staff recommend certain action or offer their opinions on given issues but require disclosure of documents which only `report' on what those recommendations and opinions are." Mead Data Cent. Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 257 (D.C.Cir.1977). The rationale for this conclusion, as the Supreme Court has recognized, is that the future quality of an agency's decisions could be affected if "the ingredients of the decisionmaking process are ... disclosed." Sears, Roebuck, 421 U.S. at 151, 95 S.Ct. 1504; see also Citizens for Responsibility & Ethics, 658 F.Supp.2d at 234 ("Clearly, the [Supreme] Court's decision reflects a concern for the chilling effects that such disclosure would have on future agency deliberations."). Given the nature of the post-decisional documents discussed in detail earlier, see supra pp. 215-17, the Court concludes that they were appropriately withheld under the deliberative-process privilege. See Judicial Watch, 796 F.Supp.2d at 31, 2011 WL 2678930 at *14 (finding that the deliberative-process privilege covered an e-mail exchange "reflect[ing] internal deliberations as to how to respond to a press inquiry regarding the agency's earlier decision to award TARP funding" to a particular institution); Judicial Watch, 736 F.Supp.2d at 208-09 (concluding that the deliberative-process privilege covered e-mails "discuss[ing] how to respond to on-going inquiries from the press and Congress" regarding an earlier agency decision).
The remaining document for the Court to address is document 37a-c. According to the DOJ, this document is a May 11, 2009 e-mail chain "from a [Civil Rights Division] Front Office administrative assistant requesting a line attorney or
The description of this document convinces the Court that it was appropriately withheld under the deliberative-process privilege. Document 37a-c is predecisional as it is dated May 11, 2009, and thus preceded the filing of the motion for voluntary dismissal on May 15, 2009. In addition, the Court finds that disclosing a preliminary report of the character described above would "discourage candid discussion" within the DOJ, Access Reports, 926 F.2d at 1195, and expose to outside observation the deliberative process of the agency, Russell, 682 F.2d at 1048, events the deliberative-process privilege is designed to protect, Petroleum Info., 976 F.2d at 1434; see also McKinley, 647 F.3d at 339-40 (discussing the purposes of the deliberative-process privilege). Accordingly, the DOJ has properly withheld this record under the deliberative-process privilege.
Finally, the DOJ represents that all of the withheld materials (including document 37a-c and the records post-dating the filing of the motion for voluntary dismissal) were reviewed and determined to "contain no reasonably segregable, non-exempt information." Def.'s Mem., Ex. 3 (Hermilla Decl.) ¶ 16; see also id., Ex. 3 (Hermilla Decl.) ¶ 28 ("I have carefully reviewed the responsive documents and determined that [they] contain no reasonably segregable, non-exempt information; therefore, for all ... documents, no segregation was possible."); id., Ex. 4 (Brinkmann Decl.) ¶ 60 ("[W]e carefully reviewed each of the documents to determine whether any information could be segregated for release.... They are exempt in full and so contain no reasonably segregable, nonexempt information."). As far as the Court can tell, the plaintiff does not challenge the DOJ's segregability assessment as to these documents. Nevertheless, the DOJ bears the burden of showing that no such segregable information exists, Army Times Pub'lg Co. v. Dep't of Air Force, 998 F.2d 1067, 1071 (D.C.Cir.1993), and "must provide a `detailed justification' for its non-segregability," Johnson v. Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C.Cir.2002) (quoting Mead Data Cent., 566 F.2d at 261).
While the Court certainly appreciates Mr. Hermilla and Ms. Brinkmann's efforts, based on the level of detail provided in other parts of their declarations, the Court is convinced that the DOJ can provide a more comprehensive description as to why any non-exempt material in document 37a-c and the post-May 15, 2009 records cannot be segregated. For example, the DOJ can "describe what proportion of the information in th[e] documents[, if any,] is non-exempt and how that material is dispersed throughout the document[s]." Mead Data Cent., 566 F.2d at
For the reasons stated above, the Court concludes that the DOJ has properly asserted Exemption 5 of the FOIA as the basis for withholding all the documents that are in dispute. However, the DOJ has not provided a sufficiently detailed justification regarding the non-segregability of document 37a-c, as well as the records post-dating the filing of its notice of voluntary dismissal. Accordingly, the DOJ's motion for summary judgment must be denied without prejudice as to these documents but granted as to all other documents withheld under Exemption 5. Upon submission to the Court of a renewed motion for summary judgment, along with a declaration or other documentation that addresses the segregability issue, the Court will reevaluate the DOJ's request for summary judgment. Should the DOJ fail to file such a motion or provide adequate detail regarding why these documents cannot be segregated, the DOJ will be required to disclose the non-exempt portions to the plaintiff.
