Judicial Watch, Inc. v. DOJ

 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 22, 2021          Decided December 10, 2021

                         No. 20-5304

                   JUDICIAL WATCH, INC.,
                        APPELLANT

                              v.

          UNITED STATES DEPARTMENT OF JUSTICE,
                       APPELLEE



        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:17-cv-00832)


    Paul J. Orfanedes argued the cause for appellant. With
him on the briefs was Meredith Di Liberto.

    Thomas Pulham, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were Brian
M. Boynton, Acting Assistant Attorney General, and Sharon
Swingle, Attorney.

    Before: HENDERSON, TATEL, and WILKINS, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge TATEL.
                               2
     TATEL, Circuit Judge: One week after taking the oath of
office, President Donald Trump signed Executive Order
Number 13,769 suspending entry into the United States of
foreign nationals from seven majority-Muslim countries.
Critics immediately challenged the Executive Order, and on
January 30, Acting Attorney General Sally Yates issued a four-
paragraph statement declaring that, “for as long as I am the
Acting Attorney General, the Department of Justice will not
present arguments in defense of the Executive Order, unless
and until I become convinced that it is appropriate to do so.”
President Trump fired Yates later that day. Some two months
later, Judicial Watch filed suit under the Freedom of
Information Act, seeking attachments to four emails sent to and
from Yates’s DOJ email account on the same day that she
issued her statement. DOJ declined to release the attachments,
invoking the deliberative process privilege set forth in FOIA
Exemption 5. The district court granted summary judgment for
the government. For the reasons set forth below, we reverse.

                               I.

     “The basic purpose of FOIA is to ensure an informed
citizenry, vital to the functioning of a democratic society,
needed to check against corruption and to hold the governors
accountable to the governed.” NLRB v. Robbins Tire & Rubber
Co., 

 (1978). FOIA “mandates the disclosure
of documents held by a federal agency unless the documents
fall within one of nine enumerated exemptions.” United States
Fish & Wildlife Service v. Sierra Club, Inc., 

, 785
(2021). The fifth exemption—the one at issue in this case—
protects “inter-agency or intra-agency memorandums or letters
that would not be available by law to a party other than an
agency in litigation with the agency.” 

(b)(5).
Concerned that the government was overusing the privilege,
Congress passed the FOIA Improvement Act of 2016, which
                              3
prohibits an agency from withholding information unless it
“reasonably foresees that disclosure would harm an interest
protected by an exemption” or if “disclosure is prohibited by
law.” 

 § 552(a)(8)(A); see also H.R. Rep. No. 114-391, at 10
(2016) (“The deliberative process privilege is the most used
privilege and the source of the most concern regarding
overuse.”).

     Judicial Watch’s FOIA request, filed just two days after
President Trump fired Yates, seeks “[a]ny and all e-mails sent
from or received from the Department of Justice e-mail account
utilized by former Acting Attorney General Sally Yates
between January 21, 2017 and January 31, 2017.” First
Brinkmann Decl., Ex. A, Judicial Watch, Inc. v. DOJ,
No. 17-cv-832 (D.D.C. Aug. 23, 2018), ECF No. 19-1. When
DOJ failed to timely respond, Judicial Watch sued in the
district court to compel the agency to produce the requested
materials. See 

(a)(6)(A)(i) (generally providing
agencies twenty weekdays to determine whether to comply
with a FOIA request and to notify the requester).

     DOJ produced some documents but redacted or withheld
others pursuant to Exemption 5. Among the documents
withheld were four attachments to four January 30, 2017
emails sent hours apart from one another. The first of the
attachments, titled “draft.docx,” was attached to an email sent
from Deputy Attorney General Matthew Axelrod to Yates at
8:41 a.m. Pl.’s Resp. to Def.’s Second Statement of Material
Facts, Ex. A, Judicial Watch, No. 17-cv-832, ECF No. 30–1.
The second, titled “Draft2.docx,” was attached to an email
from Axelrod to Yates sent at 1:44 p.m. 

 The third and
fourth, also titled “Draft2.docx,” were attached to emails
bearing the subject “Draft2” that Yates sent from her
government to her personal email account at 2:58 p.m. and
                                4
5:27 p.m. 

 The emails contain no other substantive
information.

     DOJ moved for summary judgment, supporting its motion
with a Vaughn Index and a declaration by Office of
Information Policy Senior Counsel Vanessa Brinkmann
purporting to describe the redacted and withheld documents
and the reasons for their nondisclosures. The district court
denied DOJ’s motion, explaining that it “ha[d] not met its
burden with respect to the requirements of the FOIA
Improvement Act,” and, because that issue was dispositive, the
court “d[id] not reach the question of whether any withholdings
were ultimately proper under FOIA Exemption 5.” Judicial
Watch v. DOJ, No. 17-cv-832, 

, at *3
(D.D.C. Sept. 24, 2019). But “in light of the interests
underlying the deliberative process privilege . . . invoked by
DOJ, the Court . . . den[ied] the Motion without prejudice” and
“allow[ed] DOJ the opportunity to address the clear
deficiencies outlined in” the court’s opinion. Id. at *5, *9.

     DOJ then filed a second motion for summary judgment,
again arguing that the attachments were properly withheld
under FOIA Exemption 5’s deliberative process privilege. In
support, it filed a third Brinkmann declaration (the second is
irrelevant). That declaration states in pertinent part that,
“[t]hese documents reflect successive version[s] of working
drafts, and as such, show the internal development of the
Department’s final decisions,” and 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.” See Third Brinkmann Decl. ¶ 76,
Judicial Watch, No. 17-cv-832, ECF No. 29-2.
                                5
     This time the district court reached the Exemption 5 issue
and “ha[d] little trouble” concluding that the attachments were
properly withheld. Judicial Watch v. DOJ, 

,
45 (D.D.C. 2020). Referring to the two criteria that documents
must satisfy to fit within the deliberative process privilege, the
district court explained that “[w]orking drafts of a DOJ policy
statement to be issued by the Acting Attorney General . . .
appear manifestly ‘deliberative’ and ‘predecisional’ . . .
particularly . . . given that these documents ‘reveal the drafters’
evolving thought-processes regarding the Executive Order,’
and were transmitted directly between Ms. Yates and one of
her principal aides.” 

 (quoting Third Brinkmann Decl. ¶ 76).

     Judicial Watch appeals. Our review is de novo. Shapiro v.
DOJ, 

 (D.C. Cir. 2018) (“We review de novo
a district court’s grant of summary judgment.”).

                                II.

     “A form of executive privilege,” the deliberative process
privilege is designed “[t]o protect agencies from being forced
to operate in a fishbowl.” Sierra Club, 141 S. Ct. at 785
(internal quotation marks omitted). The privilege is “rooted in
‘the obvious realization that officials will not communicate
candidly among themselves if each remark is a potential item
of discovery and front page news.’ To encourage candor, which
improves agency decisionmaking, the privilege blunts the
chilling effect that accompanies the prospect of disclosure.” Id.
(internal citation omitted) (quoting Department of Interior v.
Klamath Water Users Protective Association, 

, 8–9
(2001)). In particular, the privilege “serves to assure that
subordinates within an agency will feel free to provide the
decisionmaker with their uninhibited opinions and
recommendations without fear of later being subject to public
ridicule or criticism; to protect against premature disclosure of
                                 6
proposed policies before they have been finally formulated or
adopted; and to protect against confusing the issues and
misleading the public by dissemination of documents
suggesting reasons and rationales for a course of action which
were not in fact the ultimate reasons for the agency’s action.”
Coastal States Gas Corp. v. Department of Energy, 

 (D.C. Cir. 1980).

      To fall within Exemption 5, a document must be
“predecisional and deliberative.” Machado Amadis v.
Department of State, 

, 370 (D.C. Cir. 2020). A
document is predecisional if it was “generated before the
adoption of an agency policy.” Coastal States, 

.
In order to determine whether a document was generated
before the adoption of an agency policy, we “must consider
whether the agency treats the document as its final view on the
matter. When it does so, the deliberative process by which
governmental decisions and policies are formulated will have
concluded, and the document will have real operative effect.”
Sierra Club, 141 S. Ct. at 786 (internal citation and quotation
marks omitted); see id. at 787 (“While we have identified a
decision’s ‘real operative effect’ as an indication of its finality,
that reference is to the legal, not practical, consequences that
flow from an agency’s action.”). In this case, the attachments
qualify as predecisional because, according to the Brinkmann
declarations, they “precede the finalization and transmission,”
First Brinkmann Decl. ¶ 21, of “the final decision[, which] was
. . . Yates’ letter on January 30, 2017,” Third Brinkmann Decl.
¶ 76.

     Determining whether a document is deliberative is less
straightforward than determining whether it is predecisional in
part because of the sheer variety of ways in which a document
can be deliberative. As we have explained, the deliberative
process privilege is “dependent upon the individual document
                               7
and the role it plays in the administrative process.” Coastal
States, 

. In Senate of Puerto Rico v. DOJ our
court explained that the agency invoking the deliberative
process privilege must show (1) “‘what deliberative process is
involved,’” and (2) “‘the role played by the documents in issue
in the course of that process.’” 

, 585–86 (D.C. Cir.
1987) (quoting Coastal States, 

). To “assist the
court in determining whether th[e] privilege is available,” the
agency should also explain (3) the “nature of the
decisionmaking authority vested in the officer or person issuing
the disputed document,” and (4) the “relative positions in the
agency’s chain of command occupied by the document’s
author and recipient.” Id. at 586 (internal quotation marks
omitted).

     With these principles in mind, we turn to the case before
us. As permitted by FOIA, the district court chose to rely on
the government’s declarations rather than examining the
attachments in camera, and thus so do we. See Shapiro, 

 (“Typically, the agency demonstrates the
applicability of a FOIA exemption by providing affidavits
regarding the claimed exemptions.”).

     In support of its claim that the attachments are
deliberative, DOJ relies on these two sentences from the third
Brinkmann declaration: “These documents reflect successive
version[s] of working drafts, and as such, show the internal
development of the Department’s final decisions. . . . The
disclosure of the drafts of [Yates’s] 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.” Third
Brinkmann Decl. ¶ 76. DOJ argues that the attachments are
drafts and that our court has “repeatedly held that ‘draft[s] of
what will become a final document’ are privileged and exempt
                               8
from compelled disclosure.” Appellee’s Br. 15 (alteration in
original) (quoting Coastal States, 

, and citing
National Security Archive v. CIA, 

, 462–63 (D.C.
Cir. 2014)).

     The cases DOJ cites, however, do not support that
proposition. In Coastal States, draft documents were not even
at issue, and we affirmed the district court’s order requiring
disclosure of the documents that were at issue. 617 F.2d at 861–
62, 870–71. True, we mentioned in passing that the exemption
covers “draft documents,” id. at 866, but in a later case, we
made clear that “Coastal States forecloses the . . . argument
that any document identified as a ‘draft’ is per se exempt,”
Arthur Andersen & Co. v. IRS, 

 (D.C. Cir.
1982). “Even if a document is a ‘draft of what will become a
final document,’” we explained, “the court must also ascertain
‘whether the document is deliberative in nature.’” 

 at 257–
58 (quoting Coastal States, 

). In the other
decision cited by DOJ, National Security Archive, we held that
a draft of an agency history was covered by Exemption 5, but
we limited that holding to “the narrow confines of th[at] case.”

; see 

 (“[W]e have held that a draft of
an agency’s official history is pre-decisional and deliberative,
and thus protected under the deliberative process privilege.”).
Were there any doubt that drafts are not automatically exempt
under the deliberative process privilege, we dispelled it last
term in Reporters Committee for Freedom of the Press v. FBI,
where the government “failed to identify any deliberative
component” to draft PowerPoint slides. 

 (D.C.
Cir. 2021).

     The third Brinkmann declaration tells us that disclosing
the attachments would “reveal the drafters’ evolving thought-
processes” as well as “ideas and alternatives considered but
ultimately rejected.” Third Brinkmann Decl. ¶ 76. But it never
                                9
explains why. Indeed, it contains none of the information
Senate of Puerto Rico holds a court needs to determine whether
a document is deliberative. It tells us nothing about what
“‘deliberative process is involved,’” that is, what procedure
DOJ followed to finalize Acting Attorney General Yates’s
statement. Senate of Puerto Rico, 

 (quoting
Coastal States, 

). The declaration tells us
nothing about the “‘role’” the attachments played “‘in the
course of that process.’” 

 at 585–86 (quoting same). And it
tells us nothing about the “nature of the decisionmaking
authority vested in the officer or person issuing the disputed
document,” or the “relative positions in the agency’s chain of
command occupied by the document’s author and recipient.”
Id. at 586 (internal quotation marks omitted). It never even
identifies who prepared the attachments or to whom the
attachments were addressed. We know the attachments were
emailed to and by Yates only because Judicial Watch entered
that information into the record. Pl.’s Resp. to Def.’s Second
Statement of Material Facts, Ex. A, Judicial Watch, No. 17-cv-
832, ECF No. 30–1.

      In contrast to this case, in those cases where we found that
the withheld material was deliberative, we knew the “who,”
i.e., the roles of the document drafters and recipients and their
places in the chain of command; the “what,” i.e., the nature of
the withheld content; the “where,” i.e., the stage within the
broader deliberative process in which the withheld material
operates; and the “how,” i.e., the way in which the withheld
material facilitated agency deliberation. The inadequacy of the
third Brinkmann declaration jumps off the page when
contrasted with a recent case in which we found the
government’s showing sufficient. In Machado, the FOIA
requester sought copies of “Blitz Forms,” which agency line
attorneys fill out to identify and analyze issues in FOIA appeals
and to make recommendations to the senior attorneys who
                               10
“adjudicate” the appeal. 971 F.3d at 370. The agency redacted
information contained in the Blitz Forms, claimed it as exempt
under the deliberative process privilege, and, in accordance
with Senate of Puerto Rico, provided declarations explaining
in detail why the redacted information fell under Exemption 5.
Unlike here, the agency described the deliberative process that
was involved: staff attorneys, the key declaration explained,
“prepare Blitz Forms to succinctly summarize the initial search
and response to the administrative appeal at issue, identify
important issues to be taken into account during the course of
the adjudication process, and provide key background
information in a concise format for ease of understanding and
presentation to reviewing senior [agency] attorneys.” Def.’s
Statement of Material Facts Not in Genuine Dispute, Ex. 4 at
11, Machado Amadis v. Department of State, No. 16-cv-2230
(D.D.C. July 31, 2018), ECF No. 20-10. Unlike here, the
agency explained the role played by the withheld material in
the course of that process: “Attorney notations,” the declaration
explained, “reflect the authors’ opinions and analysis and
reveal the internal deliberations of the [agency] Appeals Staff
as they evaluate the merits of each appeal, and whether to
affirm or remand a component’s initial decision on the FOIA
request at issue.” Id. And unlike here, the agency described the
nature of the decision-making authority vested in the drafters
of the withheld material as well as their positions in the chain
of command relative to the recipients of that material: the
redactions, the declaration explained, “protect line attorneys’
evaluations, recommendations, discussions, and analysis
which are prepared for senior-level review and
decisionmaking.” Id. Unlike here, there was little mystery as to
the “who,” “what,” “where,” and “how” of the deliberative
process and the role played by the withheld material.

    Throughout its brief, DOJ cites Sierra Club, 

. There, the Court considered whether the deliberative
                               11
process privilege protected “drafts of draft biological opinions”
prepared in relation to a rule that was proposed but never
adopted. 

. Finding that the agencies involved did not
“treat[] them as final,” the Court determined that the drafts
were protected by Exemption 5. 

 But Sierra Club was about
determining whether the drafts were predecisional, not whether
they were deliberative, the issue in this case.

                              III.

     Because DOJ has failed to satisfy its burden to
demonstrate that the attachments are deliberative, we reverse
the district court’s grant of summary judgment. Because the
district court chose to rely on the government’s declarations,
and because we expect the attachments are relatively brief, we
remand with instructions to review the attachments in camera
and determine, consistent with the principles set forth herein,
whether they qualify as deliberative. Should the district court
conclude that the attachments are deliberative, it must then
determine, consistent with the principles set forth in Reporters
Committee, whether DOJ also satisfied its burden under the
FOIA Improvement Act. 3 F.4th at 369–72.

                                                    So ordered.