79 A.3d 347
D.C.2013Background
- In July 2010 the Fraternal Order of Police (FOP) requested MPD records about MPD’s involvement with Peaceoholics (documents from 2007–2010, including grants, requests for services, costs, emails, evaluations, awards).
- FOP filed suit prematurely before the 15-day FOIA response period lapsed; MPD answered, produced 120 pages, and issued a Vaughn index withholding ~300 documents, later producing most but retaining six (First/Second Productions).
- MPD searched electronic communications of 17 named MPD employees (and hard drives/paper files of two) using specified search terms; the trial court found some search terms unduly narrow and ordered MPD to search for the term “Peaceoholics.” MPD then produced additional documents (Third Production) and claimed the deliberative process privilege for parts of 62 newly found items.
- The trial court granted partial summary judgment to the District: it upheld the deliberative process claim for the six initially withheld emails and ruled the District’s FOIA response was timely, but ordered an expanded search term; it also refused in camera review and found the overall search adequate after the Third Production.
- On appeal, the D.C. Court of Appeals affirmed the privilege as to the six originally withheld emails and the timeliness ruling, but reversed and remanded on (1) whether the District adequately supported its deliberative-process redactions for the Third Production and (2) the adequacy of the government’s search, finding genuine issues of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MPD properly invoked the deliberative process privilege for six originally withheld emails (413–418) | Turner’s declaration is inadequate; privilege must be invoked by a department head | MPD submitted Turner’s declaration describing predecisional, deliberative grant-review emails | Affirmed: Turner’s declaration sufficed; emails were predecisional and deliberative |
| Whether MPD properly invoked deliberative privilege for redactions in Third Production (62 documents) | Vaughn index descriptions are conclusory; withheld material may be factual and not privileged | Vaughn index asserts redactions were predecisional discussion about response to a reporter | Reversed: Vaughn entries too cryptic; genuine issue exists; remand for better support or disclosure (in camera review optional) |
| Adequacy of MPD’s search for responsive records (custodians/locations searched) | MPD unreasonably limited custodians and hard-copy searches; documents reference other individuals suggesting additional searches | MPD identified 17 custodians as most likely and searched departments it believed relevant; followed up where indicated | Reversed: MPD failed to meet burden to show search reasonably calculated; remand for supplemental declarations or additional searching as appropriate |
| Timeliness of MPD’s FOIA response | Subsequent productions after 15 days mean MPD’s response was untimely | MPD responded within 15 days with responsive records and Vaughn index; later productions do not negate timeliness | Affirmed: initial good-faith response within statutory period satisfied timing requirement |
Key Cases Cited
- Petroleum Info. Corp. v. Dep’t of Interior, 976 F.2d 1429 (D.C. Cir. 1992) (defines predecisional and deliberative elements of the privilege)
- Mead Data Cent., Inc. v. Dep’t of Air Force, 566 F.2d 242 (D.C. Cir. 1977) (factual material generally not protected unless revealing deliberative process)
- Federal Trade Comm’n v. Grolier Inc., 462 U.S. 19 (U.S. 1983) (FOIA privilege invocation differs from civil-discovery privilege procedures)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (deliberative process prevents creation of secret, binding policy)
- Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (Vaughn index requirement for itemized withholding descriptions)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (agency affidavits afforded presumption of good faith)
- Maynard v. CIA, 986 F.2d 547 (1st Cir. 1993) (agency must show good-faith, reasonably detailed search methods)