241 F. Supp. 3d 174
D.D.C.2017Background
- Judicial Watch requested State Department records relating to notes, updates, or reports created in response to the September 11, 2012 Benghazi attacks (timeframe Sept. 11–15, 2012).
- State acknowledged the FOIA request, produced hundreds of documents in rolling productions, and withheld certain records in full or in part under FOIA exemptions including Exemption 5 (deliberative process).
- Plaintiff sued after the agency missed the statutory 20-day response window; the parties cross-moved for summary judgment focused primarily on Exemption 5 withholdings.
- Plaintiff argued the government-misconduct exception (and that two specific emails contained only factual summaries) defeated the deliberative-process privilege.
- The Court conducted an in camera review of Exemption 5 materials and concluded the government-misconduct exception does not apply in FOIA disputes; however, two specific withheld emails (C05739592 and C05739595) were not deliberative and must be produced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a government-misconduct exception defeats Exemption 5 in FOIA | Misconduct (alleged misleading of public about Benghazi) makes deliberative materials discoverable | Exemption 5 covers deliberative materials in FOIA; the misconduct exception is not cognizable here | Court: Exception not available in FOIA; Exemption 5 stands for challenged materials generally |
| Whether documents C05739592 and C05739595 are protected by deliberative-process privilege | Emails are pure factual summaries ("FYSA"/"FYI") and not deliberative | Summaries were prepared to inform senior officials and reflect selective judgment; thus predecisional and deliberative | Court: These two emails are not deliberative; withheld portions must be produced |
| Whether agency met burden on searches and other exemptions (1,3,6,7) | Plaintiff limited challenge; did not press adequacy of searches or certain exemptions | Agency contends searches were adequate and other withheld exemptions proper | Court: Plaintiff declined to press those challenges here; agency entitled to judgment on those withheld exemptions not contested |
| Scope of Exemption 5 (factual vs. advisory material) | Factual material must be disclosed; summaries that are purely factual are not protected | Agency: selection and presentation of facts can reflect deliberation and be withheld | Court: Selection alone does not automatically make a factual summary deliberative; withholding must be justified document-by-document |
Key Cases Cited
- Klamath Water Users Protective Ass'n v. U.S. Dep't of Interior, 532 U.S. 1 (deliberative-process privilege elements under Exemption 5)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir.) (deliberative process privilege may be overcome in some contexts; court distinguishes FOIA)
- Reporters Comm. for Freedom of the Press v. DOJ, 489 U.S. 749 (FOIA disclosure cannot turn on requester’s purpose)
- Judicial Watch, Inc. v. FDA, 449 F.3d 141 (D.C. Cir.) (predecisional and deliberative test for Exemption 5)
- Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242 (D.C. Cir.) (factual material generally must be disclosed; deliberative process protection is broader than semantics)
- Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir.) (application of Exemption 5 to voluminous-record summaries where judgment exercised)
- Mapother v. DOJ, 3 F.3d 1533 (D.C. Cir.) (deliberative privilege inapplicable when document’s relation to decision is too attenuated)