Judicial Watch, Inc. v. DOJ, 20 F.4th 49

On January 30, 2017, Acting Attorney General Sally Yates issued a statement refusing to defend President Trump's Executive Order suspending entry from seven majority-Muslim countries; she was fired the same day.
Judicial Watch filed a FOIA request for all emails to/from Yates’s DOJ account from Jan. 21–31, 2017; DOJ produced some material but withheld four attachments to Jan. 30 emails under FOIA Exemption 5 (deliberative process privilege).
DOJ supported its withholdings with Vaughn material and declarations (notably the Third Brinkmann declaration) asserting the attachments were successive working drafts revealing evolving thought processes.
The district court initially found DOJ’s showing deficient under the FOIA Improvement Act, allowed supplementation, then accepted DOJ’s second submission and granted summary judgment for the government on Exemption 5 grounds.
On appeal, the D.C. Circuit held DOJ failed to carry its burden to show the attachments were deliberative because its declarations omitted required details (the who/what/where/how of deliberation); the court reversed and remanded for in camera review and further analysis under FOIA Improvement Act if appropriate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the attachments are predecisional and deliberative under FOIA Exemption 5	Judicial Watch: DOJ failed to show attachments are deliberative; label “draft” insufficient	DOJ: Attachments are successive drafts revealing internal development and evolving thought—thus exempt	Predecisional arguably satisfied, but deliberative not shown; DOJ failed its burden and summary judgment reversed
Whether a document’s status as a “draft” makes it per se exempt	Draft label alone is insufficient to invoke Exemption 5	Drafts often qualify as privileged	Draft status is not per se exempt; must show deliberative content and role in decisionmaking
Adequacy of agency declarations supporting privilege (Brinkmann)	Declarations lack the who/what/where/how required by Senate of Puerto Rico and related precedent	Declarations describe drafts and evolving thought-processes and thus justify withholding	Declarations were inadequate—failed to identify drafters/roles, decisionmaking context, or the documents’ role in the process
Remedy and standard on remand including FOIA Improvement Act obligations	DOJ must also show it reasonably foresaw disclosure would harm an exempt interest	DOJ should get in camera review and then meet FOIA Improvement Act standard if documents are deliberative	Remand for in camera review; if materials are deliberative, district court must then apply Reporters Committee guidance on FOIA Improvement Act (foreseeable harm)

NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) (FOIA’s basic purpose: public right to know)
United States Fish & Wildlife Serv. v. Sierra Club, 141 S. Ct. 777 (2021) (distinguishes predecisional vs. finality; treat-as-final test)
Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (2001) (deliberative privilege protects candid internal communications)
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (privilege depends on document’s role; drafts not per se exempt)
Senate of Puerto Rico v. DOJ, 823 F.2d 574 (D.C. Cir. 1987) (agency must explain what deliberative process and the document’s role; who/what/where/how factors)
Arthur Andersen & Co. v. IRS, 679 F.2d 254 (D.C. Cir. 1982) (drafts require inquiry into whether they are deliberative)
National Security Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014) (narrowly recognized draft-of-history protection)
Shapiro v. DOJ, 893 F.3d 796 (D.C. Cir. 2018) (de novo review of FOIA summary judgment)
Machado Amadis v. Dep’t of State, 971 F.3d 364 (D.C. Cir. 2020) (example where detailed declarations satisfied Exemption 5)
Reporters Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021) (drafts and necessity of showing deliberative component; FOIA Improvement Act foreseeability guidance)