890 F. Supp. 2d 35
D.D.C.2012Background
- EFF filed FOIA seeking DOJ records concerning HLCG discussions with the EU on cross-border information sharing for law enforcement.
- HLCG created to pursue non-binding data protection principles with internal (DOJ, DHS, State) and external (EU) deliberations; no single U.S. official controlled the process.
- Ministers in Oct 2009 endorsed continued work and redress discussions; negotiations toward a binding US-EU data privacy agreement began in 2011 and were ongoing as of 2012.
- DOJ previously moved for partial summary judgment; court instructed revised Vaughn submissions addressing deliberative process and segregability.
- DOJ asserts Exemption 5 deliberative process privilege; plaintiff contests privilege scope, process, and separability; dispute over how many pages remain in contention (DOJ: 178; plaintiff: ~490).
- Court decision: grant DOJ partial summary judgment in part (withholding upheld) and deny plaintiff’s cross-motion in part; remaining segregability issue focused on OIPGEB-1 is deferred for further explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Exemption 5 applies to the disputed records. | Plaintiff argues the records are final positions or non-deliberative. | DOJ contends records are intra-agency and predecisional/deliberative. | Yes; records are inter/intra-agency under Exemption 5 and protected. |
| Whether the records are predecisional and deliberative. | Plaintiff asserts many records are final positions or non-deliberative. | DOJ shows records predate decisions and reflect advisory/contributory deliberations. | Yes; records are predecisional and deliberative. |
| Whether purely factual material can be segregated and disclosed. | Plaintiff seeks segregable factual portions. | Factual material is inextricably intertwined with deliberative material or reflects discretion. | Generally yes; non-exempt segregable material should be released, but one document (OIPGEB-1) requires further explanation; segregation denied for others. |
| Whether waiver of the deliberative process privilege occurred through any disclosures to the EU. | Disclosures to EU may waive privilege as to information disclosed. | No waiver shown; disclosures were within executive branch and not to the public. | Waiver not proven; no broad waiver found; remains within privilege. |
Key Cases Cited
- Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir. 1980) (whether informal adoption creates secret law; test for predecisional vs adopted positions)
- Pub. Citizens, Inc. v. OMB, 598 F.3d 865 (D.C. Cir. 2010) (deliberative process privilege scope; predecisional requirement)
- Sears, Roebuck & Co. v. United States Dept. of the Air Force, 421 U.S. 132 (U.S. 1975) (test for deliberative process privilege; ultimate policy decision protection)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (waiver and interplay of deliberative information; burden shifting)
- Mapother v. DOJ, 3 F.3d 1533 (D.C. Cir. 1993) (demonstrates what constitutes deliberative material; exercising judgment in selecting facts)
- Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (segregability and non-exempt information standard)
- United States v. Philip Morris USA, Inc., 218 F.R.D. 312 (D.D.C. 2003) (context on agency documents and discovery principles in FOIA)
- Judicial Watch, Inc. v. FDA, 449 F.3d 151 (D.C. Cir. 2006) (predecisional and deliberative content)