Reporters Committee for Freedom of the Press v. FBI
3 F.4th 350
| D.C. Cir. | 2021Background
- In 2007 FBI agents impersonated news organizations (e.g., AP/Seattle Times) to induce an anonymous 15-year-old bomb-threat suspect to click a link that delivered surveillance software. The tactic became public in 2014.
- Reporters Committee for Freedom of the Press and the Associated Press submitted FOIA requests seeking records about the FBI’s media-impersonation tactics and related policies; litigation followed after the FBI’s limited productions and withholdings.
- The district court initially upheld the FBI’s withholdings under FOIA Exemption 5 (deliberative process privilege); this Court previously found the FBI’s search inadequate and remanded.
- The FBI later produced additional records but withheld multiple categories (including Comey emails, drafts of an OIG report, factual-correction comments, draft PowerPoints, a cover letter, and internal emails about policy changes) claiming various FOIA exemptions.
- The D.C. Circuit considered (1) whether each category was predecisional and deliberative (Exemption 5), and (2) whether the FOIA Improvement Act’s "foreseeable harm" requirement was satisfied for withheld materials.
- Holding: the Court sustained withholding for Director Comey’s email chain and internal emails about altering undercover-media-impersonation practices, but reversed or rejected withholding for the OIG draft reports (on foreseeable-harm grounds), the FBI’s "Factual Accuracy Comments," and the draft PowerPoints; the OIG cover letter issue was moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Comey’s draft-letter email chain is protected by the deliberative process privilege | Emails merely defended existing policy and are not predecisional; should be disclosed | Emails were internal, prepublication deliberations among senior officials about how to respond to a policy crisis and thus are predecisional and deliberative | Protected: privilege applies and withholding sustained (foreseeable harm shown) |
| Whether drafts of the OIG report are privileged | Drafts’ deliberative content is minimal or adopted into final report; should be released | Drafts are predecisional, deliberative OIG analysis and recommendations | Privilege applies (drafts are predecisional/deliberative) but withholding reversed because foreseeable-harm showing was inadequate |
| Whether the FBI’s "Factual Accuracy Comments" are deliberative and can be withheld | Comments are purely factual corrections and thus not protected; must be segregated and disclosed | Comments are part of internal review and thus covered by Exemption 5 | Not deliberative as presented; government failed to show they were non-severable opinion — must disclose segregable factual material (withholding improper) |
| Whether draft PowerPoint presentations are deliberative | Drafts concern existing policy explanation and are non-deliberative; should be disclosed | Drafts are predecisional "drafts" and can be withheld even if they died on the vine | Not protected: drafts merely explained existing policy and are not deliberative — withholding improper |
| Whether internal emails among FBI attorneys and staff re: changing impersonation policy are privileged and foreseeably harmful | Communications are routine and descriptive, not predecisional deliberations requiring protection | Emails were predecisional, contained recommendations about new interim policy and implementation, and disclosure would chill candid tactical discussions | Protected: privilege applies and withholding sustained (agency made sufficient foreseeable-harm showing) |
Key Cases Cited
- Department of the Air Force v. Rose, 425 U.S. 352 (Sup. Ct.) (FOIA’s disclosure purpose and burden on agencies)
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (Sup. Ct.) (definition and scope of the deliberative process privilege)
- United States Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777 (Sup. Ct.) (predecisional vs. postdecisional distinction for Exemption 5)
- Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir.) (purposes of the deliberative process privilege)
- Access Reports v. Department of Justice, 926 F.2d 1192 (D.C. Cir.) (internal deliberations to defend policy can be predecisional)
- Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir.) (draft responses to public inquiries can be deliberative)
- Machado Amadis v. Department of State, 971 F.3d 364 (D.C. Cir.) (FOIA Improvement Act’s foreseeable-harm requirement requires concrete, document-specific showing)
- Electronic Frontier Foundation v. Department of Justice, 739 F.3d 1 (D.C. Cir.) (Exemption 5 adoption doctrine and limits on withholding)