Case Information
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC.,
Plaintiff, v. Civil Action No. 17-0832 (CKK) U.S. DEPARTMENT OF JUSTICE,
Defendant . MEMORANDUM OPINION
(September 18, 2020)
This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiff Judicial Watch, Inc. made to Defendant United States Department of Justice (“DOJ”) in 2017 for certain emails received by or sent from the DOJ email account used by former Acting Attorney General Sally Yates. Now pending before the Court is DOJ’s Second Motion for Summary Judgment and Judicial Watch’s Cross-Motion for Summary Judgment. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, [1] the Court GRANTS DOJ’s Second Motion for Summary Judgment, ECF No. 29, and DENIES Judicial Watch’s Cross- Motion for Summary Judgment, ECF No. 21.
I. BACKGROUND
Sally Q. Yates served as Acting Attorney General of the United States from January 20, 2017 to January 30, 2017. On January 30, 2017, Acting Attorney General Yates issued a memorandum instructing attorneys within the Department of Justice not to defend Executive Order 13,769 (the “Executive Order”), which suspended immigration benefits to nationals of certain countries. Pl.’s Stmt. ¶¶ 6–7. Later that evening, the White House announced that President Donald J. Trump had “relieved Ms. Yates of her duties,” because she had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect citizens of the United States.” Id. ¶ 7.
On February 1, 2017, Judicial Watch made a FOIA request for emails received by or sent from the DOJ email account used by Ms. Yates from January 21, 2017 through January 31, 2017. See id. ¶ 1. DOJ acknowledged receipt of Judicial Watch’s FOIA request, and Judicial Watch subsequently filed this present lawsuit on May 5, 2017. ¶¶ 2–3. In response, DOJ made multiple productions of documents to Judicial Watch, see id. ¶ 5, but ultimately withheld sixteen documents under the deliberative process and attorney-work product privileges provided for in FOIA Exemption 5, see Mem. Op., ECF 27, at 2. To support these withholdings, DOJ submitted a Vaughn Index and a supporting affidavit, then filed for summary judgment. DOJ Vaughn Index, ECF No. 19-2, at 2; Brinkmann Decl. (Aug. 23, 2018), ECF No. 19, ¶ 12(a). Judicial Watch opposed DOJ’s first summary judgment motion and filed a cross-motion for summary judgment in response. On September 24, 2019, the Court denied DOJ’s motion for summary judgment. Specifically, the Court found that DOJ had “failed to identify specific harms to the relevant protected interests that it can reasonably foresee would actually ensue from disclosure of the withheld materials,” and, therefore, had not met its burden of proof under the FOIA Improvement Act of 2016. Mem. Op., ECF 27, at 10. Nonetheless, the Court held Judicial Watch’s cross-motion for summary judgment in abeyance and permitted DOJ an opportunity to supplement the record with more specific support for its withholdings. Id. at 18.
Following the Court’s September 24, 2019 order, DOJ made a supplemental production of one of the previously withheld documents. See Pl.’s Stmt. ¶ 5; Brinkmann Decl. (Nov. 5, 2019), ECF No. 30-2, ¶ 4. Judicial Watch then further narrowed the scope of the disputed documents by exclusively limiting its challenge to four withheld drafts of Acting Attorney General Yates’ January 30, 2017 memorandum regarding Executive Order 13,769. See Pl.’s Opp’n at 1–2 (limiting the dispute to Documents 5153-1, 5156-1, 5164-1, and 5182-1). These four drafts were each attachments to emails DOJ has already produced to Judicial Watch. See Pl.’s Stmt. ¶ 8. DOJ has now filed a renewed summary judgment motion and submitted an additional affidavit in support of its decision to withhold these documents, specifically under the deliberative process privilege within FOIA Exemption 5. Def.’s Mot. at 10–14; Brinkmann Decl. (Nov. 5, 2019), ECF No. 30-2, ¶¶ 75–77. Judicial Watch opposes DOJ’s renewed motion and also re-incorporates its original cross-motion for summary judgment, still pending before the Court. Pl.’s Opp’n at 1, n.1. The parties’ motions are now ripe for review.
II. LEGAL STANDARD
Congress passed FOIA to “‘open[] up the workings of government to public scrutiny’
through the disclosure of government records.”
Stern v. Fed. Bureau of Investigation
, 737 F.2d
84, 88 (D.C. Cir. 1984) (quoting
McGehee v. Cent. Intelligence Agency
,
When presented with a motion for summary judgment in this context, the Court must
conduct a de novo review of the record. 5 U.S.C. § 552(a)(4)(B). This requires the court to
“ascertain whether the agency has sustained its burden of demonstrating the documents requested
are . . . exempt from disclosure under the FOIA.”
Multi Ag Media LLC v. Dep’t of Agric.
, 515 F.3d
1224, 1227 (D.C. Cir. 2008) (internal quotation marks omitted). “An agency may sustain its
burden by means of affidavits, but only ‘if they contain reasonable specificity of detail rather than
merely conclusory statements, and if they are not called into question by contradictory evidence
in the record or by evidence of agency bad faith.’” (quoting
Gallant v. Nat’l Labor Relations
Bd.
,
Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations “show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION
Judicial Watch has narrowed its challenge to four drafts of Acting Attorney General Sally Yates’ January 30, 2017 memorandum regarding Executive Order 13,769. Pl.’s Opp’n at 1– 2. DOJ has withheld these four documents under the deliberative process privilege within FOIA Exemption 5. See Vaughn Index, ECF No. 19-2, at 2; Brinkmann Decl. (Nov. 5, 2019), ECF No. 30-2, ¶¶ 75–77. For the reasons set forth herein, the Court finds that DOJ’s withholdings under Exemption 5 are now proper.
A. FOIA Exemption 5 And The FOIA Improvement Act
FOIA “Exemption 5 shields documents that would ‘normally be privileged from discovery
in civil litigation against the agency,’ such as documents protected by the attorney-client, work-
product, and deliberative process privileges.”
Danik v. U.S. Dep’t of Justice
, No. 17-CV-1792
(TSC),
In 2016, Congress supplemented FOIA exemptions, like Exemption 5, with the FOIA
Improvement Act. S. Rep. No. 114-4 (2016),
as reprinted in
2016 U.S.C.C.A.N. 321, 322.
The Act set forth a “presumption of openness” for FOIA requests and “mandate[d] that an agency
may withhold information only if it reasonably foresees a specific identifiable harm to an interest
protected by an exemption, or if disclosure is prohibited by law.”
Id.
at 324;
see also
5 U.S.C.
§ 552(a)(8)(A)(i). “Stated differently, pursuant to the FOIA Improvement Act, an agency must
release a record—even if it falls within a FOIA exemption—if releasing the record would not
reasonably harm an exemption-protected interest and if its disclosure is not prohibited by law.”
Rosenberg v. U.S. Dep’t of Def.
,
B. DOJ’s Withholdings Of The Draft Memoranda Are Proper DOJ has invoked the deliberative process privilege under FOIA Exemption 5, to withhold four drafts of Acting Attorney General Yates’ January 30, 2017 memorandum regarding Executive Order 13,769. 5 U.S.C. § 552(b)(5). Document 5182-1 is an attachment entitled “draft.docx,” which then-Principal Associate Deputy Attorney General Matthew S. Axelrod emailed to Ms. Yates at 8:41 AM on January 30, 2017. See Pl.’s Stmt. ¶ 9. Document 5164-1 is another attachment entitled “Draft2.docx,” which Mr. Axelrod included in a subsequent January 30, 2017 email sent to Ms. Yates at 1:44 PM. id. ¶ 10. Later that day, at 2:58 PM, Ms. Yates emailed the document entitled “Draft2.docx” from her government email to her personal email account (Document 5156-1). See id. ¶ 11. And finally, at 5:27 PM, Ms. Yates again emailed the document entitled “Draft2.docx” from her government email to her personal email account (Document 5153- 1). See id. ¶ 12. DOJ has acknowledged that these four documents (5182-1, 5164-1, 5156-1, and 5153-1) are “working drafts” of Ms. Yates’ final memorandum regarding the Executive Order. See id. ¶ 8; Brinkmann Decl. (Aug. 23, 2018), ¶ 12(a).
As an initial matter, the Court has little trouble finding that these four draft memoranda fall
under the deliberate process privilege within FOIA Exemption 5. Working drafts of a DOJ policy
statement to be issued by the Acting Attorney General regarding the legality of an executive order
appear manifestly “deliberative” and “predecisional.”
See People for the Am. Way Found. v. Nat'l
Park Serv.
,
A more difficult question, however, is whether DOJ has set forth a sufficient justification
for its FOIA withholdings under the FOIA Improvement Act. 5 U.S.C. § 552(a)(8)(A)(i). Even
where FOIA Exemption 5 applies, DOJ must still demonstrate a link between some reasonably
foreseeable harm and the disclosure of the specific information contained in the documents
withheld.
U.S. Dep’t of Commerce
, 375 F. Supp. 3d at 100 (quotation omitted). Here, the
deliberative process privilege at issue implicates several exemption-protected interests: (1) “it
protects creative debate and candid consideration of alternatives within an agency, and, thereby,
improves the quality of agency policy decisions,” (2) “it protects the public from the confusion
that would result from premature exposure to discussions occurring before the policies affecting it
had actually been settled upon,” and (3) “it protects the integrity of the decision-making process
itself by confirming that officials would be judged by what they decided, not for matters they
considered before making up their minds.”
Machado Amadis v. Dep’t of Justice
, 388 F. Supp. 3d
1, 18–19 (D.D.C. 2019),
aff'd sub nom. Machado Amadis v. United States Dep’t of State
, No. 19-
5088,
With its renewed motion for summary judgment, DOJ has submitted a supplemental affidavit from Ms. Vanessa Brinkmann, Senior Counsel at DOJ’s Office of Information Policy (“OIP”). Brinkmann Decl. (Nov. 5, 2019), ECF No. 30-2, ¶¶ 1–2. Therein, Ms. Brinkmann explains that disclosure of the four drafts of Ms. Yates’ memorandum regarding Executive Order 13,769 would jeopardize each of the aforementioned exemption-protected interests. First, Ms. Brinkmann states that the disclosures would “undermine the ability of Department staff to freely engage in the candid ‘give and take’ and forthright internal development of final agency actions.” ¶ 76. Next, she asserts that such disclosures would also “result in public confusion from the disclosure of reasons and rationales that were not ultimately the grounds for the Department’s final actions.” Id. Finally, Ms. Brinkmann notes that these disclosures would unfairly open the Attorney General up to public judgment on the basis of draft language antecedent to final agency statements. See id. ¶ 77.
Importantly, Ms. Brinkmann’s affidavit also explains why the disclosure of these particular draft memoranda would implicate the specific harms identified. For example, Ms. Brinkmann notes that Documents 5153-1, 5156-1, 5164-1, and 5182-1 “reflect successive version[s] of working drafts, and as such, show the internal development of . . . Acting Attorney General Yates’ letter on January 30, 2017, instructing Department of Justice officials not to defend the validity of Executive Order 13,769.” Id. ¶ 76. Ms. Brinkmann’s affidavit then further states that “[t]he disclosure of the drafts of this final statement would reveal the drafters’ evolving thought- processes regarding the Executive Order, as well as ideas and alternatives considered but ultimately rejected in the final agency decision.” Id. And, as Ms. Brinkmann explains, the chilling effect threatened by the disclosure of Ms. Yates’ draft memoranda is “especially acute” because these documents implicate a sensitive DOJ matter. Id. ¶ 77. Specifically, “[t]he simple possibility of the eventual release of a rejected draft statement on such a high-profile matter as the defense of Executive Order 13,769 would impair everyone involved in the drafting of such a statement, including the Attorney General himself, from thinking, writing, and advising freely.” Id.
The Court concludes that DOJ’s revised justification for its Exemption 5 withholdings,
provided in Ms. Brinkmann’s supplemental affidavit, satisfies the FOIA Improvement Act. The
Court reaches this decision specifically in view of the D.C. Circuit’s recent holding in
Machado
Amadis v. United States Dep't of State
, --- F.3d ---, No. 19-5088,
Ms. Brinkmann’s supplemental affidavit in this case is similarly adequate. As in
Machado
Amadis
, Ms. Brinkmann’s affidavit here identifies the content of the withheld documents (draft
statements on the validity of Executive Order 13,769), and affirmatively concludes that these
documents “would reveal . . . ideas and alternatives” regarding the Executive Order, which were
“considered but ultimately rejected in the final agency decision.” Brinkmann Decl. (Nov. 5, 2019),
ECF No. 30-2, ¶ 76. And like the OIP affidavit in
Machado Amadis
, Ms. Brinkmann’s affidavit
also specifically connects the disclosure of these drafts to a tangible chilling effect, here amongst
high-level DOJ personnel when crafting public statements on agency policy.
See Machado
Amadis
,
C. The “Government Misconduct” Exception Is Inapplicable Finally, Judicial Watch asserts that even if FOIA Exemption 5 applies, this Court “should consider whether the ‘government-misconduct’ exception nonetheless warrants disclosure” of the draft memoranda from Acting Attorney General Yates. Pl.’s Opp’n at 8. Specifically, Judicial Watch contends that these drafts represent “deliberations on [Ms.] Yates’ decision to commit insubordination,” and therefore constitute acts of misconduct that “do not warrant protection under the deliberative process privilege and should be made public.” at 9. The Court, however, must disagree.
As this Court previously explained in
Judicial Watch, Inc. v. United States Dep’t of State
,
285 F. Supp. 3d 249, 253 (D.D.C. 2018), it is not clear in this circuit whether a government
misconduct exception may properly be invoked in a FOIA case. But even assuming such an
exception did apply, a plaintiff must meet a high bar to properly invoke it.
See, e.g.
,
Hall & Assocs.
v. U.S. Envtl. Prot. Agency
,
Plaintiff has provided no authority to credibly suggest that Ms. Yates’ draft memoranda
meet this standard. To the contrary, these documents are “working drafts” of a DOJ policy
statement addressing the validity of an executive order, passed between the Acting Attorney
General herself and one of her principal aides. Far from an egregious act of government
wrongdoing, such internal drafts concerning the legality of government action lie at the very heart
of the Attorney General’s official role. And the fact that Ms. Yates ultimately
disagreed
with the
President’s view on Executive Order 13,769, in and of itself, does not represent foul play, but
rather independent judgment. Nor does the President’s decision to relieve Ms. Yates of her post
after this disagreement suggest malfeasance, as Judicial Watch implies. Instead, it represents the
administrative prerogative of a President to remove an executive officer who holds views diverging
from his own.
See Humphrey’s Ex’r v. United States
,
IV. CONCLUSION
For the reasons set forth above, the Court concludes that DOJ has met its burden under the FOIA Improvement Act, and appropriately withheld Documents 5182-1, 5164-1, 5156-1, and 5153-1 under FOIA Exemption 5. 5 U.S.C. § 552(b)(5). Accordingly, the Court GRANTS DOJ’s Second Motion for Summary Judgment and DENIES Judicial Watch’s Cross-Motion for Summary Judgment.
An appropriate Order accompanies this Memorandum Opinion.
Dated : September 18, 2020 /s/
COLLEEN KOLLAR-KOTELLY United States District Judge
Notes
[1] This Memorandum Opinion focuses on the following briefing and evidence submitted by the parties: • Pl.’s Mem. of P. & A. in Opp’n to Def.’s Mot. for Summ. J. and in Supp. of Pl.’s Cross-Mot., ECF No. 21; • Def.’s Mem. in Supp. of U.S. Dep’t of Justice’s Second Mot. for Summ. J. (“Def.’s Mot”), ECF No. 29-1; • Pl.’s Mem. of P. & A. in Opp’n to Def.’s Second Mot. for Summ. J. (Pl.’s Opp’n), ECF No. 30; • Pl.’s Resp. to Def.’s Second Stmt. of Mat. Facts (“Pl.’s Stmt.”), ECF No. 30; and, • Def.’s Reply to Pl.’s Mem. of P. & A. in Opp’n to Def.’s Second Mot. for Summ. J., ECF No. 31.