Judicial Watch, Inc. v. United States Department of Defense
2017 U.S. App. LEXIS 2133
| D.C. Cir. | 2017Background
- Judicial Watch filed a FOIA request seeking the Secretary of Defense’s "memos" and any separate "determinations" relating to the May 31, 2014 transfer of five Guantanamo detainees to Qatar (the transfers were authorized under 10/2013 NDAA §1035).
- DOD produced one of eight nearly identical classified letters that the Secretary signed and sent to members of Congress, but withheld a cover memo prepared by Assistant Secretary Michael Lumpkin (the "Lumpkin Memo").
- DOD’s FOIA response and Herrington declaration explained the Lumpkin Memo was an unsigned, internal cover memo prepared for the Secretary and not a signed secretarial determination; DOD asserted it was protected by Exemption 5’s deliberative process privilege.
- The district court reviewed the Lumpkin Memo in camera, concluded it was responsive but predecisional and deliberative, and granted summary judgment for DOD.
- On appeal, Judicial Watch argued the Secretary’s signing and sending of the attached letters amounted to an "adoption" or ratification of the Lumpkin Memo (thus negating the privilege) and also invoked the Secretary’s recordkeeping obligations.
- The D.C. Circuit affirmed, holding the Lumpkin Memo remained a privileged deliberative document because the Secretary did not expressly adopt it as his own decision or reasoning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Lumpkin Memo is exempt under Exemption 5 as predecisional and deliberative | The Secretary’s signature on the attached letters adopted/ratified the memo, stripping privilege | The memo was an unsigned, internal cover memo; the Secretary signed only the letters and did not endorse the memo | Held: Memo is predecisional and deliberative and thus privileged under Exemption 5 |
| Whether the memo became an agency "adopted" or decisional document | Signing the letters indicates express adoption/ratification of memo’s reasoning | Signing correspondence does not necessarily show express adoption; reliance may be silent or indirect | Held: No express adoption shown; mere signing of related letters insufficient to convert memo into an agency decision |
| Whether district court’s characterization of the memo as "responsive" implies it was a secretarial determination | Responsive designation argues memo is within scope of request for Secretary’s memos/determinations | DOD’s in-camera review and Herrington declaration show it was not a signed Secretary memo or determination | Held: Even if the court called it responsive, in-camera review confirmed the memo is not a signed secretarial determination and remains privileged |
| Whether recordkeeping statute (44 U.S.C. §3101) required public disclosure or adoption of the memo | Secretary’s statutory recordkeeping duties required treating the memo as an official decisional record | Recordkeeping requires preservation, not public disclosure or conversion of internal deliberative documents into adoptive decisional records | Held: §3101 does not compel public release or adoption; preservation suffices |
Key Cases Cited
- Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865 (privilege under Exemption 5 and deliberative process explained)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (adoption doctrine; express adoption required to defeat deliberative privilege)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (deliberative process privilege purpose and protection of predecisional materials)
- Afshar v. Dep’t of State, 702 F.2d 1125 (silent implementation does not strip predecisional character)
- Horowitz v. Peace Corps, 428 F.3d 271 (discussion of predecisional/deliberative standards)
- United States v. Nixon, 418 U.S. 683 (candor and confidentiality rationale for privileges)