Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of State
| Decision Date | 11 February 2022 |
| Docket Number | Case No. 20-cv-2044 (CRC) |
| Parties | CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON, Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Conor M. Shaw, Citizens for Responsibility and Ethics in Washington, Anne L. Weismann, Washington, DC, for Plaintiff.
Daniel Riess, U.S. Department of Justice, Civil Division, Washington, DC, for Defendant.
CHRISTOPHER R. COOPER, United States District Judge In this Freedom of Information Act ("FOIA") case, Plaintiff Citizens for Responsibility and Ethics in Washington ("CREW") seeks records related to the U.S. Department of State's handling of document and testimony requests from congressional committee chairs. After CREW filed suit, the Department released twelve responsive documents in part, but invoked FOIA Exemption 5 and the deliberative process privilege to justify withholding portions of each. CREW objects to all of the Exemption 5 redactions, which it groups into three categories: (1) material related to draft responses to specific congressional inquiries, including drafts of one letter and emails discussing potential edits; (2) emails discussing the Department's approach to various other document requests and document-processing issues; and (3) select redactions from an internal Department report discussing progress responding to document requests.1 The parties have filed cross-motions for summary judgment on the propriety of these withholdings.
The Court will deny the State Department's motion for summary judgment, in part without prejudice, and will grant in part and deny in part CREW's cross-motion. As to the first two categories, the Department has not provided sufficient detail for the Court to determine whether the material withheld is deliberative under the standards the D.C. Circuit recently articulated in Reporters Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021), and Judicial Watch, Inc. v. U.S. Department of Justice, 20 F.4th 49 (D.C. Cir. 2021). The Court will therefore remand these matters to the Department to reevaluate the propriety of these redactions and, if it chooses, provide more detailed justifications for any remaining withholdings. But the Court does have enough information to evaluate the final group of redactions to the internal report. State has not and cannot establish that the material redacted is deliberative, nor that release of the report would lead to reasonably foreseeable harm. Accordingly, the Department must release this document in full.
CREW is a non-profit watchdog organization focusing on government ethics and transparency. See Compl. ¶ 4. In 2020, several news outlets reported that the White House had directed administration officials—including at the State Department—to rebuff efforts at oversight from Democratic chairs of various House committees, but cooperate in full with requests by the Republican heads of Senate committees. See id. ¶¶ 10–16. In response to this alleged partisan approach to congressional oversight, CREW filed a complaint with the State Department's Office of Inspector General requesting an investigation into "allegations that the State Department [wa]s improperly politicizing its approach to high-profile congressional investigations." Id. ¶ 17.
Not content to wait for the Inspector General to act, CREW also lodged two FOIA requests with the State Department in June 2020. See id. ¶ 20. In the first request, CREW sought material "pertaining, concerning, or reflecting any guidance, instruction, directive, or recommendation on how to handle document or testimony requests from congressional committee chairs, and whether that handling differs depending on the political party of the Chairman or Chairwoman who makes the request." Id. ¶ 21. In the second request, CREW sought two additional categories of records. First, it requested any communications sent or received by certain State Department officials regarding requests for documents or testimony from three Democratic House committee chairs. Id. ¶ 22. Second, CREW asked for documents and communications sent or received by then-Secretary of State Michael R. Pompeo and other high-level officials related to CREW's Inspector General complaint. Id. ¶ 23. When the State Department failed to timely respond to the FOIA requests, CREW filed suit. See id. ¶ 27.
Production is now complete. The Department released portions of twelve responsive documents, but it redacted material from each based on the deliberative process privilege. See Stein Decl. ¶¶ 8–9, 12. CREW disputes the propriety of these withholdings. See Pl.’s Opp'n to Def.’s Mot. Summ. J. & Mem. in Support of Pl.’s Cross-Mot. Summ. J. ("Pl.’s Cross-MSJ") at 10–16. In CREW's view, the Department also has not established that foreseeable harm would result from disclosure, as required by the FOIA Improvement Act of 2016, 5 U.S.C. § 552(a)(8)(A)(i), nor that it has released any segregable, non-exempt material. See Pl.’s Cross-MSJ at 16–20. The parties filed cross-motions for summary judgment, which are ripe for review.
Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). "But Congress also realized that legitimate governmental and private interests could be harmed by release of certain types of information." DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (internal quotation marks omitted). "Accordingly, FOIA balances the public's need for access to official information with the Government's need for confidentiality by exempting nine categories of records from disclosure." Id. (internal alteration and citation omitted); see 5 U.S.C. § 552(b). Because FOIA "mandates a strong presumption in favor of disclosure," its "statutory exemptions, which are exclusive, are to be narrowly construed." Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (internal quotation marks omitted).
FOIA disputes are typically and appropriately resolved on summary judgment. See Citizens for Resp. & Ethics in Washington v. Dep't of Homeland Sec., 525 F. Supp. 3d 181, 187 (D.D.C. 2021). In FOIA cases, an "agency is entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.’ " Prop. of the People, Inc. v. Office of Mgmt. & Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C. 2017) ).
As to the claimed exemptions, the agency may satisfy its burden through declarations that "describe[ ] the justifications for withholding the information with specific detail" and "demonstrate[ ] that the information withheld logically falls within the claimed exemption."
ACLU v. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). "Such declarations are entitled to a presumption of good faith, and the court can award the agency summary judgment based solely on the information so provided." Jud. Watch, Inc. v. CIA, 310 F. Supp. 3d 34, 41 (D.D.C. 2018). Agency declarations will not support summary judgment, however, if the plaintiff puts forth contrary evidence or demonstrates the agency's bad faith. ACLU, 628 F.3d at 619.
As to its obligation to segregate and release non-exempt material, the government may similarly demonstrate that it released all reasonably segregable parts of otherwise exempt records by submitting an affidavit indicating that an agency official conducted a review of each document and determined that the documents did not contain segregable information. Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). While the agency may not rely on conclusory statements, Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260–61 (D.C. Cir. 1977), it is entitled to a presumption that it complied with its segregability obligation, Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 2013).
Finally, the government must also demonstrate at summary judgment that it has satisfied the standards imposed by the FOIA Improvement Act of 2016, which allows an agency to withhold information only if it "reasonably foresees that disclosure would harm an interest protected by an exemption" to FOIA or "disclosure is prohibited by law." 5 U.S.C. § 552(a)(8)(A)(i). The statute's "distinct foreseeable harm requirement ... foreclose[s] the withholding of material unless the agency can articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld." Reps. Comm., 3 F.4th at 369 () (internal quotation marks omitted).
This case concerns the application of FOIA Exemption 5 and the deliberative process privilege, which the State Department cited as justification for all the withholdings in dispute. Exemption 5 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." 5 U.S.C. § 552(b)(5). The Exemption thus incorporates, "albeit in a less-than-straightforward way[,] ... the litigation privileges available to Government agencies in civil litigation," including the deliberative process privilege. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., ––– U.S. ––––, 141 S. Ct. 777, 785, 209 L.Ed.2d 78 (2021). The deliberative process privilege exists "[t]o protect agencies from being forced to operate in a fishbowl." Id. (internal quotation marks omitted). To do so, it "shields from disclosure documents reflecting advisory opinions, recommendations and...
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