325 F. Supp. 3d 447
S.D. Ill.2018Background
- Plaintiffs (Color of Change and CCR) sought FOIA production of eight draft versions of a DHS I&A intelligence assessment on "race-related domestic terrorist violence" and part of an internal email; the assessment was never finalized or disseminated outside I&A.
- DHS located and produced the drafts in fully redacted form and withheld portions under FOIA Exemptions 3, 5, and 6; Plaintiffs challenged the withholdings and moved for partial summary judgment while DHS cross-moved.
- The drafts were created by an I&A analyst and intern in 2017, went through part of I&A’s editorial review, then the project was abandoned; the March 3 email contained a senior analyst’s comments and an edited draft.
- DHS submitted a Vaughn-style declaration (Sepeta Decl.) explaining that the drafts and email were pre-decisional and deliberative and that factual material was intertwined with judgments; the court also conducted an in camera review.
- The district court found Exemption 5 (deliberative process privilege) dispositive and therefore did not reach Exemptions 3 or 6; DHS’s motion for partial summary judgment was granted and Plaintiffs’ motion was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether drafts and internal email are protected by Exemption 5 (deliberative process) | Drafts were not tied to a specific decision and at least final draft should be producible; segregable factual material should be released | Documents are pre-decisional and deliberative drafts/comments that reflect internal policymaking and editorial judgments; factual material is intertwined and would reveal deliberations | Exemption 5 applies: drafts and withheld email portions are pre-decisional and deliberative; factual material is intertwined and not reasonably segregable |
| Whether agency’s Vaughn/separability showing suffices | Sepeta declaration/Vaughn index deficient | Sepeta declaration provides detailed, plausible justification for withholding | Court finds Sepeta declaration adequate to meet agency burden |
| Whether factual material in drafts must be disclosed separately | Plaintiffs: factual portions (incident descriptions) are purely factual and should be disclosed | DHS: factual selections and organization reveal editorial judgments and decisionmaking | Court: factual material is intertwined with deliberative content and disclosure would expose decisionmaking, so withheld under Exemption 5 |
| Whether drafting that ended without a final agency decision negates privilege | Plaintiffs: absence of final adoption means documents are not pre-decisional | DHS: draft status alone suffices; privilege covers drafts that "died on the vine" | Court: draft status remains pre-decisional; privilege survives absence of final agency position |
Key Cases Cited
- Tigue v. U.S. Dep't of Justice, 312 F.3d 70 (2d Cir. 2002) (defines deliberative process privilege scope)
- Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) (predecisional/deliberative test)
- Hopkins v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81 (2d Cir. 1991) (protecting decisionmaking process integrity)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (agency need not identify a specific final decision for Exemption 5)
- Nat'l Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014) (drafts that never became final remain protected)
- ACLU v. U.S. Dep't of Justice, 844 F.3d 126 (2d Cir. 2016) (draft status supports Exemption 5 protection)
- Russell v. Dep't of Air Force, 682 F.2d 1045 (D.C. Cir. 1982) (factual material may be withheld when disclosure would reveal deliberations)