419 F.Supp.3d 69
D.D.C.2019Background
- Matthew Whitaker, as DOJ Chief of Staff/Acting AG, filed OGE Form 278e (new-entrant and annual financial disclosure); DOJ released final certified forms but not earlier draft versions.
- BuzzFeed filed a FOIA request for all original and amended (draft) versions; DOJ withheld 14 drafts (seven new-entrant, seven annual).
- DOJ invoked FOIA Exemption 5 (deliberative process privilege) and Exemption 6 (personal privacy) and argued non-segregability; BuzzFeed sought disclosure and moved for summary judgment.
- The drafts were iterative, fill‑in‑the‑blank standardized financial disclosure forms exchanged among ethics officials and Whitaker to ensure completeness and compliance with the Ethics in Government Act.
- The Court held the drafts are pre‑decisional but concluded they are not "deliberative" because they contain primarily factual entries, not policy recommendations; Exemption 5 therefore does not apply.
- The Court held Exemption 6 protects certain private financial details that were removed from drafts because they were not required to be disclosed; DOJ must release all segregable information that corresponds to entries in the final public forms and redact only extraneous private data.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether drafts are protected by Exemption 5 (deliberative process) | Drafts are not deliberative; they are standardized factual forms that cannot express agency policy | Drafts reflect intra‑agency review and edits that embody deliberations about disclosure policy | Denied for DOJ; Exemption 5 inapplicable — drafts are factual, not deliberative |
| Whether drafts contain exempt personal information under Exemption 6 | Public interest in disclosure (oversight of DOJ ethics) limited to final disclosed information; drafts should be released except for legitimately private items | Drafts include private financial details and some entries removed were not required and thus are protected | Granted in part for DOJ; Exemption 6 applies to extraneous personal financial data removed from final forms; other factual entries must be disclosed |
| Segregability of non‑exempt information | Drafts are discrete (spreadsheet/cells) so non‑exempt portions can be produced | Disclosing placements/redactions would reveal deliberations or private info | Plaintiff prevailed on segregability: DOJ must disclose all reasonably segregable non‑exempt material; redact only removed extraneous items |
Key Cases Cited
- Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (FOIA’s disclosure objective emphasized)
- Dep’t of Air Force v. Rose, 425 U.S. 352 (1976) (FOIA disclosure principle)
- Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356 (2019) (exemptions are part of FOIA’s purposes but construed narrowly)
- EPA v. Mink, 410 U.S. 73 (1973) (distinction between factual material and deliberative material under Exemption 5)
- Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (factual material generally disclosable; deliberative privilege limited)
- Playboy Enters., Inc. v. U.S. Dep’t of Justice, 677 F.2d 931 (D.C. Cir. 1982) (factual reports do not become privileged simply because they inform decisionmakers)
- ViroPharma, Inc. v. HHS, 839 F. Supp. 2d 184 (D.D.C. 2012) (exceptional circumstances where factual drafts revealed deliberative judgments leading to policy change)
- U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595 (1982) (Exemption 6 covers a broad range of personal information)
- Wash. Post Co. v. HHS, 690 F.2d 252 (D.C. Cir. 1982) (Exemption 6 threshold and balancing test)
- Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895 (D.C. Cir. 2015) (deliberative process privilege standards)
- Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879 F.2d 873 (D.C. Cir. 1989) (privacy interest—even modest—can outweigh no public interest)