Campaign Legal Ctr. v. U.S. Dep't of Justice
| Decision Date | 01 June 2020 |
| Docket Number | Civil Action No. 18-cv-1771 (TSC) |
| Parties | CAMPAIGN LEGAL CENTER, Plaintiff, v. U.S. Department of Justice, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Campaign Legal Center (CLC) has sued the U.S. Department of Justice (DOJ), seeking to compel responses to its February 2, 2018 Freedom of Information Act (FOIA) request. DOJ has moved for summary judgment , and CLC has cross-moved for summary judgment (ECF No. 24, Pl. MSJ). For the reasons set forth below, the court will grant in part and deny in part DOJ's Motion for Summary Judgment and grant in part and deny in part CLC's Cross-Motion for Summary Judgment.1
Wilbur Ross became Secretary of the Department of Commerce on February 28, 2017. Roughly two months later, he emailed a subordinate, Earl Comstock, stating: (ECF No. 24-5, 5/2/17 Email at 2.) Ross was referring to his request to add aquestion about citizenship status to the 2020 Census Questionnaire. Comstock replied the same day: (5/2/17 Email at 2.)
Secretary Ross followed up that August: (ECF No. 24-6, Pl. Exh. 5 at 2.) A month later, on Friday September 8, 2017, Comstock sent Secretary Ross a memo stating:
I spoke several times with James McHenry [DOJ] by phone, and after considering the matter further James said that Justice staff did not want to raise the question . . . James directed me to Gene Hamilton at the Department of Homeland Security. Gene and I had several phone calls to discuss the matter, and then Gene relayed that after discussion DHS really felt [] it was best handled by the Department of Justice. At that point the conversation ceased and I asked James Uthmeier [OGC at Commerce] to look into the legal issues and how Commerce could add the question to the Census itself.
(ECF No. 24-7, Pl. Exh. 6 at 2). The record indicates that Secretary Ross contacted then-Attorney General Jeff Sessions that same Friday, because the following Monday, Arthur Gary, the General Counsel for DOJ's Justice Management Division, emailed John Gore, a Deputy Assistant Attorney General: (ECF No. 27-2, Pl. Exh. A at 3.)
The record further suggests that Attorney General Sessions quickly agreed to request the citizenship question. Later that week, Gore connected via email a DOJ employee and a Department of Commerce employee to coordinate a call between Sessions and Ross. (ECF No. 24-8, Pl. Exh. 7at 2.) In the correspondence preceding the call, the DOJ employee wrote: (Id.) A call between Sessions and Ross occurred that day—September 17, 2017. (Id.) With the Attorney General on board, the drafting process commenced, including the following steps:
With the letter complete, Gary mailed and faxed it (the "Gary Letter") to Dr. Ron Jarmin of the U.S. Census Bureau on December 12, 2017. (Id. at 57.) In March 2018, Secretary Ross announced Commerce's intention to add the citizenship question, writing that "[f]ollowing receiptof the DOJ request, I set out to take a hard look at the request and ensure that I considered all facts and data relevant to the question . . ." (ECF No. 24-2, Pl. Exh. 1 at 2.)
In June of that year, Secretary Ross clarified, in a supplemental memorandum, that he had had the idea before DOJ's request, and that he had in fact asked DOJ to make the request: "my staff and I consulted with Federal government components and inquired whether [DOJ] would support, and if so would request, inclusion of a citizenship question as consistent with and useful for enforcement of the Voting Rights Act." (ECF No. 24-4, Pl. Exh. 3 at 2.) This supplemental memorandum indicates that not only did Commerce ask DOJ to make the request, it further supplied DOJ with the rationale for the request. (Id.) By the time Attorney General Sessions agreed to make the request, all DOJ had to do was draft and send it.
On February 1, 2018 CLC submitted a FOIA request to three DOJ components: the Civil Rights Division (CRT), the Justice Management Division (JMD), and the Office of the Attorney General (OAG). CLC asked DOJ to search for "[a]ny documents to, from, or mentioning Dr. Ron Jarmin or Dr. Enrique Lamas" and to use eight search terms: "2020 Census", "long form", "citizenship question", "question regarding citizenship", "ACS", "American Community Survey", "citizen voting age population", and "CVAP". (Id.)
CRT searched for responsive documents in the Voting Section and at the Office of the Assistant Attorney General (OAAG). (ECF No. 22-5, Cooper Decl. ¶¶ 4-10.) Senior staff in the Voting Section determined that all responsive records would be found in Chris Herren's Outlook account; Herren searched his account and located responsive documents. (Id. ¶ 6.) At the OAAG, the Director of Operational Management determined that Gore "was the only OAAG employee whohad a substantive role in the preparation of the Gary Census letter." (Id. ¶ 9.) Gore's Outlook account was first searched using the term "census," and later searched for emails on which Gary and Pickett were addressees. (Id. ¶¶ 9, 12.) On August 2, 2018, CRT conducted another search for "handwritten notes, drafts, or other hard copy documents." (Id. ¶ 14.)
On September 26 and November 19, 2018, CRT released sixty-nine pages in full or in part, and withheld forty-two pages in full, pursuant to Exemption 5 and 6. (Id. ¶¶ 16, 17.) On May 8, 2018, CRT released an additional 114 pages of hard documents that were "inadvertently overlooked" from its earlier response. (Id. ¶¶ 17, 18.)
CRT also processed a referral of sixteen pages from the Office of Information Policy (OIP), releasing twelve pages in their entirety, withholding two in full under Exemption 5, and referring two pages to the Office of Justice Programs (OJP), which released them to CLC. (Id. ¶¶ 19, 20.)
OIP is responsible for processing FOIA requests submitted to OAG. (ECF No. 22-4, Brinkmann Decl. ¶ 1.) In response to CLC's request, OIP used all of CLC's suggested search terms to search the "unclassified email records and computer hard drives" of ten records custodians. (Id. ¶¶ 14-16.) In light of the large number of potentially responsive records, CLC and OIP agreed to exclude various categories of records from the request. (Id. ¶ 18.) On March 29, 2019, OIP informed CLC that it had located 219 pages of responsive records. (ECF No. 22-4, Def. Exh. D at 37.) OIP also processed seventy pages referred by JMD. (Brinkmann Decl. ¶ 19.) Of those combined 289 pages, 91 were withheld in full and 21 withheld in part pursuant to Exemption 5. (Id.)
Arthur Gary, JMD's General Counsel, conducted a "manual search of his emails for responsive records, using the search terms listed in the request." (ECF No. 22-3, Allen Decl. ¶ 7.)Officials familiar with the matter determined that no other employee would have non-duplicative responsive material. (Id.) JMD released 116 pages with some redactions under Exemptions 5 and 6 and withheld in full five draft letters attached to responsive emails. (Id. ¶ 9.)
Summary judgment is proper...
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