JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF JUSTICE, 487 F.Supp.3d 38

Acting Attorney General Sally Yates (Jan. 20–30, 2017) issued a Jan. 30 memorandum directing DOJ attorneys not to defend Executive Order 13,769; the White House removed her that evening.
Judicial Watch FOIA request (Feb. 1, 2017) sought emails to/from Yates’ DOJ account for Jan. 21–31, 2017; DOJ produced many records but initially withheld 16 documents under Exemption 5.
Judicial Watch sued; the Court denied DOJ’s first summary-judgment motion for failing to articulate specific, foreseeable harms under the FOIA Improvement Act, and gave DOJ leave to supplement the record.
DOJ supplemented with a Brinkmann affidavit and narrowed the dispute to four withheld draft memoranda (Docs. 5182-1, 5164-1, 5156-1, 5153-1), which were working drafts of Yates’ Jan. 30 memo.
The Court held the drafts were predecisional and deliberative and found DOJ’s supplemental affidavit sufficiently linked disclosure of these specific drafts to reasonably foreseeable harms under the FOIA Improvement Act.
The Court rejected Judicial Watch’s invocation of a "government misconduct" exception and granted DOJ’s renewed motion for summary judgment, denying Judicial Watch’s cross-motion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of the deliberative-process privilege to the four draft memoranda	Drafts are not shielded and should be disclosed	Drafts are working, predecisional, and reflect internal deliberations protected by Exemption 5	Court: Drafts are predecisional and deliberative; Exemption 5 applies
FOIA Improvement Act’s "specific foreseeable harm" requirement	DOJ previously failed to identify specific harms; disclosure poses no identifiable harm	Supplemental Brinkmann affidavit ties disclosure of these drafts to identifiable harms (chilling candid advice; public confusion; unfair judgment of decisionmakers)	Court: Brinkmann affidavit sufficiently links disclosure to foreseeable harms; DOJ meets the Act’s standard
Government-misconduct exception to Exemption 5	Drafts reveal Yates’ insubordination and misconduct, so privilege should not apply	Disagreement with the President is not extreme wrongdoing; drafts are ordinary internal deliberations	Court: Exception inapplicable; plaintiff did not show extreme government wrongdoing
Disposition of summary-judgment motions	Judicial Watch: cross-motion should be granted	DOJ: renewed motion should be granted based on supplemental record	Court: Grants DOJ’s second MSJ; denies Judicial Watch’s cross-motion

Milner v. Dep't of Navy, 562 U.S. 562 (explains FOIA exemptions must be narrowly construed)
Dep't of Air Force v. Rose, 425 U.S. 352 (disclosure is FOIA's dominant objective)
Fed. Bureau of Investigation v. Abramson, 456 U.S. 615 (Exemption 5 shields materials privileged in civil discovery)
Tax Analysts v. I.R.S., 117 F.3d 607 (scope of Exemption 5 includes deliberative materials)
Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (defines predecisional and deliberative communications)
Judicial Watch, Inc. v. U.S. Dep't of Commerce, 375 F. Supp. 3d 93 (describes FOIA Improvement Act’s foreseeability/link requirement)
Rosenberg v. U.S. Dep't of Defense, 342 F. Supp. 3d 62 (discusses when records must be released despite exemptions under FOIA Improvement Act)
People for the Am. Way Found. v. Nat'l Park Serv., 503 F. Supp. 2d 284 (drafts commonly exempt under deliberative-process privilege)
Hinckley v. United States, 140 F.3d 277 (internal disagreement does not nullify the privilege)
Humphrey's Ex'r v. United States, 295 U.S. 602 (President’s authority to remove executive officers discussed in context)