U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18-cv-01771-TSC

CAMPAIGN LEGAL CENTER v. UNITED STATES DEPARTMENT OF JUSTICE Assigned to: Judge Tanya S. Chutkan Case: 1:18-cv-01187-TSC Case in other court: USCA, 20-05233 Cause: 05:552 Freedom of Information Act

Date Filed: 07/30/2018 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff CAMPAIGN LEGAL CENTER

represented by Adam B. Miller BUCKLEY LLP 2001 M Street, NW Suite 500 Washington, DC 20036 (202) 349-7958 Fax: (202) 349-8080 Email: amiller@buckleyfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle M. Lang CAMPAIGN LEGAL CENTER 1101 14th Street, NW Suite 400 Washington, DC 20005 (202) 736-2200 Fax: (202) 736-2222 Email: dlang@campaignlegalcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadav Ariel BUCKLEY LLP 2001 M Street, NW Suite 500 Washington, DC 20036 (202) 349-8012 Fax: (202) 349-8080 Email: nariel@buckleyfirm.com

V.
Defendant
UNITED STATES DEPARTMENT OF JUSTICE

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul Cirino U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2529 Fax: (202) 252-2599 Email: paul.cirino@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua M. Kolsky U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2541 Fax: (202) 252-2599 Email: joshua.kolsky@usdoj.gov TERMINATED: 12/21/2018

Date Filed 07/30/2018
07/30/2018 07/30/2018

# Docket Text

COMPLAINT against UNITED STATES DEPARTMENT OF

1

JUSTICE ( Filing fee $ 400 receipt number 0090-5611117) filed by

CAMPAIGN LEGAL CENTER. (Attachments: # 1 Exhibit 1,

# 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit

6, # 7 Summons, # 8 Civil Cover Sheet with Notice of Related

Case)(Miller, Adam) (Entered: 07/30/2018)

2 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CAMPAIGN LEGAL CENTER (Miller, Adam) (Entered: 07/30/2018)

3 NOTICE OF RELATED CASE by CAMPAIGN LEGAL CENTER. Case related to Case No. 18-1187. (sth) (Entered: 07/31/2018)

07/30/2018 07/31/2018 08/07/2018
08/07/2018 08/07/2018 08/30/2018 08/30/2018 08/31/2018

Case Assigned to Judge Tanya S. Chutkan. (zsth) (Entered: 07/31/2018)

4 SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zsth) (Entered: 07/31/2018)

5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/1/2018. Answer due for ALL FEDERAL DEFENDANTS by 8/31/2018. (Miller, Adam) (Entered: 08/07/2018)

6 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/01/2018. (Miller, Adam) (Entered: 08/07/2018)

7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 8/1/2018 (Miller, Adam) (Entered: 08/07/2018)

8 NOTICE of Appearance by Joshua M. Kolsky on behalf of UNITED STATES DEPARTMENT OF JUSTICE (Kolsky, Joshua) (Entered: 08/30/2018)

ANSWER to Complaint by UNITED STATES DEPARTMENT OF

9

JUSTICE.(Kolsky, Joshua) (Entered: 08/30/2018)

MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and proposed order no later than 9/28/18. Signed by Judge Tanya S. Chutkan on 8/31/8. (DJS) (Entered: 08/31/2018)

08/31/2018 09/04/2018 09/05/2018 09/28/2018
10/24/2018 10/25/2018 10/26/2018 10/31/2018
10/31/2018 10/31/2018

Set/Reset Deadlines: Joint Status Report due by 9/28/2018. (tb) (Entered: 08/31/2018)
10 NOTICE of Appearance by Danielle M. Lang on behalf of CAMPAIGN LEGAL CENTER (Lang, Danielle) (Entered: 09/04/2018)
Set/Reset Deadlines: Joint Status Report due by 9/28/2018. (tb) (Entered: 09/05/2018)
11 Joint STATUS REPORT by CAMPAIGN LEGAL CENTER. (Attachments: # 1 Exhibit Exhibit A - Declaration of Joseph F. Klimavicz, # 2 Exhibit Exhibit B - CLC Proposed Order, # 3 Exhibit Exhibit C - DOJ Proposed Order)(Miller, Adam) (Entered: 09/28/2018)
MINUTE ORDER: A Status Conference is hereby set for 10/31/18 at 10:30 am in Courtroom 9. Signed by Judge Tanya S. Chutkan on 10/24/18. (DJS) (Entered: 10/24/2018)
Set/Reset Hearings: Status Conference set for 10/31/2018 at 10:30 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 10/25/2018)
12 NOTICE of Appearance by Nadav Ariel on behalf of CAMPAIGN LEGAL CENTER (Ariel, Nadav) (Entered: 10/26/2018)
Minute Entry for proceedings held before Judge Tanya S. Chutkan: Status Conference held on 10/31/2018. The Court directed the parties to submit a Joint Status Report on or before December 17, 2018. (Order forthcoming.) (Court Reporter Bryan Wayne.) (tg) Modified to add deadline on 10/31/2018 (tg). (Entered: 10/31/2018)
Set/Reset Deadlines: Joint Status Report due by 12/17/2018. (tg) (Entered: 10/31/2018)
MINUTE ORDER: Having considered the parties' Joint Status Report 11 and the updates provided at the October 31, 2018 Status Conference, the parties are ordered to adhere to the following deadlines. With respect to the FOIA requests made to the Justice Management Division, the 170 pages that were referred to the Office of Information Policy, the 40 pages that were referred to the Department of Commerce, and 5 pages that were referred to the Census Bureau shall be processed and produced on or before December 12, 2018. Further, the status report, due on or before December 17, 2018, shall include, but not necessarily be limited to, the following: (1) an update on the production due on or before

12/17/2018 12/17/2018 12/19/2018 12/21/2018
01/04/2019
01/07/2019 01/07/2019 01/24/2019

December 12, 2018; (2) an update on whether the searches that are scheduled to be rerun in the next three months are duplicative of Plaintiff's requests; (3) an update on whether the fact that the instant request was granted expedited processing should result in it advancing in the queue; (4) a production schedule for the documents that are responsive to the requests made to the Office of the Attorney General; and (5) a proposed status conference date. In addition, the parties are directed to file, three days before the next status conference, a proposed summary judgment briefing schedule. Signed by Judge Tanya S. Chutkan on 10/31/2018. (lctsc1) (Entered: 10/31/2018)
13 Consent MOTION for Extension of Time to File Joint Status Report by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 12/17/2018)
MINUTE ORDER: Granting 13 Motion for Extension of Time to File to File Joint Status Report. Joint Status and proposed order due 1/5/19. Signed by Judge Tanya S. Chutkan on 12/17/18. (DJS) (Entered: 12/17/2018)
Set/Reset Deadlines: Joint Status Report due by 1/5/2019. (tb) (Entered: 12/19/2018)
14 ENTERED IN ERROR. . . . .NOTICE OF SUBSTITUTION OF COUNSEL by Paul Cirino on behalf of UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Joshua M. Kolsky (Cirino, Paul) Modified on 1/4/2019 (ztd). (Entered: 12/21/2018)
NOTICE OF ERROR re 14 Substitution of Counsel; emailed to paul.cirino@usdoj.gov, cc'd 9 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect header/caption/case number, 2. Please refile document, 3. Document has the incorrect case number (ztd, ) (Entered: 01/04/2019)
15 MOTION to Stay in Light of Lapse in Appropriations by UNITED STATES DEPARTMENT OF JUSTICE (Cirino, Paul) (Entered: 01/07/2019)
16 RESPONSE re 15 MOTION to Stay in Light of Lapse in Appropriations filed by CAMPAIGN LEGAL CENTER. (Ariel, Nadav) (Entered: 01/07/2019)
17 NOTICE of Change of Law Firm Name by CAMPAIGN LEGAL CENTER (Ariel, Nadav) (Entered: 01/24/2019)

01/28/2019

18 NOTICE OF SUBSTITUTION OF COUNSEL by Paul Cirino on behalf of UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Joshua Kolsky (Cirino, Paul) (Entered: 01/28/2019)

02/15/2019

19 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order (Plaintiff's Proposal), # 2 Text of Proposed Order (Defendant's Proposal))(Cirino, Paul) (Entered: 02/15/2019)

02/19/2019

MINUTE ORDER: Having considered the parties' February 15, 2019 Joint Status Report 19 , the parties are ordered to adhere to the following deadlines. With respect to Plaintiff's request for records of the Office of the Attorney General, Defendant shall complete its production of non-exempt responsive records by March 29, 2019. And on or before April 5, 2019, the parties shall file a status report, which includes a proposed summary judgment briefing schedule. A status conference is set for April 11, 2019 at 11:00 a.m., in Courtroom 9. Further, the motion 15 to stay is TERMINATED as moot. Signed by Judge Tanya S. Chutkan on 2/19/2019. (lctsc1) (Entered: 02/19/2019)

02/21/2019

Set/Reset Deadlines/Hearings: Status Report due by 4/5/2019. Status Conference set for 4/11/2019 at 11:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 02/21/2019)

04/05/2019 20

Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Cirino, Paul) (Entered: 04/05/2019)

04/11/2019

Minute Entry: Status Conference held on 4/11/2019 before Judge Tanya S. Chutkan: Cross Motion due by 5/22/2019. Response to Cross Motion due by 6/5/2019. Reply to Cross by 6/12/2019. Summary Judgment motion due by 5/8/2019. Response to Motion for Summary Judgment due by 5/22/2019. Reply to Motion for Summary Judgment due by 6/5/2019. (Court Reporter Scott Wallace) (tb) (Entered: 04/12/2019)

04/17/2019

MINUTE ORDER: Defendant's Motion for summary judgment due by 5/8/2019. Plaintiff's combined response/cross-motion for summary judgment due by 5/22/2019. Defendant's combined reply/response due 6/5/2019. Plaintiff's reply due by 6/12/2019. Signed by Judge Tanya S. Chutkan on 4/17/19. (DJS) Modified on 4/18/2019 (tb). (Entered: 04/17/2019)

04/30/2019

21 NOTICE of Change of Address by Nadav Ariel (Ariel, Nadav) (Entered: 04/30/2019)

05/08/2019
05/22/2019 05/22/2019 06/05/2019 06/05/2019 06/12/2019 08/06/2019

22 MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Michael H. Allen (with JMD Vaughn Index), # 4 Declaration of Vanessa R. Brinkmann (with Exhibits and OIP Vaughn Index), # 5 Declaration of Tink Cooper, # 6 Exhibits A-G to Cooper Declaration, # 7 Exhibits H-L to Cooper Declaration, # 8 Civil Rights Division Vaughn Index, # 9 Text of Proposed Order)(Cirino, Paul) (Entered: 05/08/2019)
23 RESPONSE re 22 MOTION for Summary Judgment filed by CAMPAIGN LEGAL CENTER. (Attachments: # 1 Declaration of Nadav Ariel, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Text of Proposed Order)(Ariel, Nadav) (Entered: 05/22/2019)
24 Cross MOTION for Summary Judgment by CAMPAIGN LEGAL CENTER (Attachments: # 1 Declaration of Nadav Ariel, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 17, # 18 Text of Proposed Order)(Ariel, Nadav) (Entered: 05/22/2019)
25 REPLY to opposition to motion re 22 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration (Second) of Vanessa R. Brinkmann, # 2 Declaration (Supplemental) of Tink Cooper, # 3 Response to Plaintiff's Statement of Undisputed Facts)(Cirino, Paul) (Entered: 06/05/2019)
26 Memorandum in opposition to re 24 Cross MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration (Second) of Vanessa R. Brinkmann, # 2 Declaration (Supplemental) of Tink Cooper, # 3 Response to Plaintiff's Statement of Undisputed Facts, # 4 Text of Proposed Order)(Cirino, Paul) (Entered: 06/05/2019)
27 REPLY to opposition to motion re 24 Cross MOTION for Summary Judgment filed by CAMPAIGN LEGAL CENTER. (Attachments: # 1 Declaration Declaration of N. Ariel, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B)(Ariel, Nadav) (Entered: 06/12/2019)
28 NOTICE OF SUPPLEMENTAL AUTHORITY by CAMPAIGN LEGAL CENTER (Ariel, Nadav) (Entered: 08/06/2019)

06/01/2020 29

MEMORANDUM OPINION regarding Defendant's 22 Motion for Summary Judgment and Plaintiff's 24 Motion for Summary Judgment. Signed by Judge Tanya S. Chutkan on 6/1/2020. (lcdl) (Entered: 06/01/2020)

06/01/2020

30 ORDER granting in part and denying in part Defendant's 22 Motion for Summary Judgment and granting in part and denying in part Plaintiff's 24 Motion for Summary Judgment. The parties shall meet and confer and file a JOINT proposal for moving forward with this case no later than July 1, 2020. See order for details. Signed by Judge Tanya S. Chutkan on 6/1/2020. (lcdl) (Entered: 06/01/2020)

06/02/2020

Set/Reset Deadlines: Joint Proposal due by 7/1/2020. (tb) (Entered: 06/02/2020)

06/05/2020

MINUTE ORDER: The parties' 7/1/2020 joint report shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 6/5/2020. (DJS) (Entered: 06/05/2020)

07/01/2020 31

Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A - Defendant's Proposed Order, # 2 Exhibit B - Plaintiff's Proposed Order)(Cirino, Paul) (Entered: 07/01/2020)

07/07/2020

MINUTE ORDER: Having considered the parties' Joint Status Report, it is hereby ORDERED that (1) Defendant shall conduct the Civil Rights Division's supplemental search in accordance with this court's pervious orders on or before August 14, 2020, and confer with Plaintiff no later than August 31, 2020 regarding a proposed review and production schedule; (2) Absent an appeal by Defendant, Defendant shall produce the drafts and emails related to the Gary Letter by August 31, 2020; (3) Absent an appeal by Defendant, Defendant shall produce responsive DOJ-White House communications not covered by the deliberative process privilege by August 31, 2020; and that (4) the parties shall submit a further Joint Status Report, including a proposed order, on September 1, 2020, apprising the Court of the status of the progress on the items ordered by the court on June 1, 2020, and proposing further proceedings as appropriate. Signed by Judge Tanya S. Chutkan on 7/7/2020. (lcdl) (Entered: 07/07/2020)

07/08/2020

Set/Reset Deadlines: Joint Status Report due by 9/1/2020. (tb) (Entered: 07/08/2020)

07/31/2020

32 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 29

Memorandum & Opinion, 30 Order on Motion for Summary

07/31/2020
07/31/2020 08/04/2020 09/01/2020

Judgment,,, by UNITED STATES DEPARTMENT OF JUSTICE. Fee Status: No Fee Paid. Parties have been notified. (Cirino, Paul) (Entered: 07/31/2020)
33 ENTERED IN ERROR. . . . .Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 32 Notice of Appeal to DC Circuit Court. (ztd) (Main Document 33 replaced on 7/31/2020) (ztd). Modified on 8/4/2020 (ztd). (Entered: 07/31/2020)
USCA Case Number 20-5233 for 32 Notice of Appeal to DC Circuit Court filed by UNITED STATES DEPARTMENT OF JUSTICE. (zrdj) (Entered: 08/04/2020)
34 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 32 Notice of Appeal to DC Circuit Court. (ztd) (Entered: 08/04/2020)
35 Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A - Defendant's Proposed Order, # 2 Exhibit B - Plaintiff's Proposed Order)(Cirino, Paul) (Entered: 09/01/2020)

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1:18-cv-01771TSC 0.60

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER 1411 K Street NW, Suite 1400 Washington, DC 20005
Plaintiff,
v.
UNITED STATES DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue NW Washington, DC 20530
Defendant.

Civil Action No.

COMPLAINT FOR INJUNCTIVE RELIEF 1. This action is brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel the Department of Justice, specifically the Department of Justice components Justice Management Division and the Office of Attorney General, to produce records responsive to a February 1, 2018 FOIA request concerning the addition of a citizenship question to the 2020 Census Questionnaire. To date, the Department of Justice has not released any documents related to the “citizenship question,” even though it sent a letter to the Commerce Department requesting its addition to the 2020 Census. Plaintiff seeks injunctive and other appropriate relief to compel defendant United States Department of Justice to disclose requested records, as required by FOIA, 5 U.S.C.§ 552.
JURISDICTION AND VENUE

2. This Court has both subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1331. Venue is proper under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e).
PARTIES 3. Plaintiff Campaign Legal Center (“CLC”) is a nonpartisan, nonprofit legal organization that works to strengthen American democracy at all levels of government. Among other activities, CLC engages in local, state, and federal actions to ensure the political process is accessible to all citizens, resulting in a representative, responsive, and accountable government. As part of these activities, CLC conducts research, publishes reports and articles, and regularly provides expert analysis to the media. CLC is also involved in litigation throughout the country regarding voting rights, campaign finance, redistricting, and electoral ethics. To support these efforts and to educate the public, CLC regularly seeks information under FOIA regarding federal agency decision-making. 4. Defendant Department of Justice (“DOJ”) is a department of the Executive Branch of the United States Government. The Office of Information Policy (“OIP”), the Office of the Attorney General (“OAG”), and the Justice Management Division (“JMD”) are components of Defendant DOJ. Defendant DOJ is an “agency” within the meaning of 5 U.S.C. § 552(f).
STATEMENT OF FACTS 5. On February 1, 2018, CLC submitted to OAG and JMD a FOIA request for records pertaining to a request by Arthur E. Gary, the General Counsel of JMD, to the Census Bureau to add a citizenship question to the 2020 Census Questionnaire. See Ex. 1 (Feb. 1, 2018 FOIA Letter).
2

6. In particular, CLC sought (1) documents to, from, or mentioning Dr. Ron Jarmin
or Dr. Enrique Lamas; and (2) documents containing the phrases “2020 census,” “long form,”
“citizenship question,” “questions regarding citizenship,” “ACS,” “American Community
Survey,” “citizen voting age population,” or “CVAP,” dating from January 20, 2017 to the
present.
7. CLC requested expedited processing because there is an “urgency to inform the
public” about the “actual or alleged government activity” covered by the request and because the
requested records involve “a matter of widespread and exceptional media interest in which there
exist possible questions about the government’s integrity that affect public confidence.” 28
C.F.R. § 16.5(e)(1)(iv).
8. Since CLC’s initial request, the urgency of this request has only increased. On
March 26, 2018, Secretary Ross announced his decision to add a citizenship question to the 2020 Census.1 Secretary Ross made this announcement despite a technical review by Census officials concluding that the change will be “very costly” and “harm[] the quality of the Census count.”2
Eighteen states, as well as various cities, counties, mayors, and nonprofit organizations, have filed
suit against the Department of Commerce to enjoin the addition of the citizenship question. See
State of New York, et al. v. Dep’t of Commerce, No. 18-cv-2921 (S.D.N.Y. 2018). In those lawsuits,
1 Memorandum from Sec’y of Commerce Wilbur Ross to Under Sec’y of Commerce for Econ. Affairs Karen Dunn Kelley on Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire 7 (Mar. 26, 2018) (https://www.commerce.gov/sites/commerce.gov/files/2018-03-26_2.pdf). 2 Memorandum from John M. Abowd, Chief Scientist and Associate Director for Research and Methodology, U.S. Census Bureau, Technical Review of the Department of Justice Request to Add Citizenship Question to the 2020 Census (Jan. 19, 2018) (http://www.osec.doc.gov/opog/FOIA/Documents/AR%20-%20FINAL%20FILED%20%20ALL%20DOCS%20%5bCERTIFICATION-INDEXDOCUMENTS%5d%206.8.18.pdf#page=1289).
3

the administrative record that has been produced does not include records from the Department of Justice. Mr. Gary’s request and Secretary Ross’s subsequent decision to add a citizenship question to the 2020 Census have garnered enormous media and public interest, affecting public confidence in the government.3
A. Office of the Attorney General 9. OAG responded to CLC’s request on February 9, 2018. OAG granted CLC’s request for expedited processing, but claimed the records sought required a “search in and/or consultation with another Office,” and thus presented “unusual circumstances” under 5 U.S.C. § 552(a)(6)(B). OAG provided no “date on which a determination is expected,” as required by 5 U.S.C. § 552(a)(6)(B)(i). See Ex. 2 (Feb. 9, 2018 OAG Response). 10. After receiving no further communication from OAG, CLC sent a letter on May 18, 2018 requesting information about the status of the request and a prompt determination. See Ex. 3 (May 18, 2018 CLC Letter). 11. When OAG still failed to respond, CLC sent another letter on June 22, 2018 requesting information about the status of the request and a prompt determination. See Ex. 4 (June 22, 2018 CLC-OAG Letter). 12. OAG contacted CLC on June 28, 2018 estimating that OAG’s initial search for documents responsive to CLC’s request would be complete in approximately one month. OAG did not indicate when their review of the responsive documents would be complete. On July 6,
3 See, e.g., Salvador Rizzo, Wilbur Ross’s false claim to Congress that the census citizenship question was DOJ’s idea, WASH. POST, July 30, 2018, http://www. washingtonpost.com/news/fact-checker/wp/2018/07/30/wilbur-rosss-false-claim-to-congressthat-the-census-citizenship-question-was-dojs-idea/?utm_term=.9b77d9164811; Michael Wines, Census Bureau’s Own Expert Panel Rebukes Decision to Add Citizenship Question, N.Y. TIMES, March 30, 2018, http://www. nytimes.com/2018/03/30/us/census-bureau-citizenship.html.
4

2018 OAG further informed CLC that an average mid-sized expedited request requires approximately eight months to complete, an estimate that would place completion of CLC’s request around October 1, 2018. See Ex. 5 (Email Correspondence from James Smith).
13. OAG has far exceeded the applicable deadline for responding to the request by failing to respond within thirty working days of receipt. See 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B)(i).
14. CLC has exhausted its administrative remedies. See U.S.C. § 552(a)(6)(C)(i) (“Any person making a request to any agency for records … shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph.”).
B. Justice Management Division 15. JMD granted CLC’s request for expedited processing on March 14, 2018 in a phone call between Karen McFadden of JMD and Danielle Lang of CLC. JMD promised to quickly provide responsive documents on subsequent phone calls on April 26 and May 31, 2018, but did not provide a date on which it expected to produce such responsive documents. 16. When JMD failed to provide any additional information, CLC sent a letter on June 22, 2018 requesting information about the status of the request and a prompt determination. See Ex. 6 (June 22, 2018 CLC-JMD Letter). 17. To date, CLC has received no further response from JMD. 18. JMD has far exceeded the applicable deadline for responding to the request by failing to respond within twenty working days of receipt. See 5 U.S.C. § 552(a)(6)(A)(i). 19. CLC has exhausted its administrative remedies. See U.S.C. § 552(a)(6)(C)(i) (“Any person making a request to any agency for records … shall be deemed to have exhausted
5

his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph.”).
CAUSE OF ACTION Violation of the Freedom of Information Act for Wrongful Withholding of Agency Records
20. Plaintiff repeats and alleges paragraphs 1-19. 21. Defendant’s failure to make available complete records sought by CLC’s request violates FOIA, 5 U.S.C. § 552(a)(3)(A). 22. Defendant has failed to make a determination with respect to Plaintiff’s request within either twenty or thirty working days as required by 5 U.S.C. § 552(a)(6)(A)(i) and 5 U.S.C. § 552(a)(6)(B)(i). 23. Plaintiff has exhausted its administrative remedies. See 5 U.S.C. § 552(6)(C)(i). 24. Plaintiff is entitled to injunctive relief with respect to the release and disclosure of the requested documents. See 5 U.S.C. 552(a)(B)(4) (“On complaint, the district court … has jurisdiction to enjoin the agency from withholding agency records.”).
REQUESTED RELIEF WHEREFORE, Plaintiff respectfully requests that this Court:
A. Order Defendant DOJ to disclose all responsive records not exempt from disclosure;
B. Order Defendant DOJ to produce a Vaughn index for all documents it claims are exempted from disclosure;
C. Award Plaintiff its costs and reasonable attorneys’ fees incurred in this action; and D. Grant such other relief as the Court deems just and proper. Dated: July 30, 2018
6

By: _/s/____________________ BUCKLEY SANDLER LLP Adam Miller (DC Bar # 496339) 1250 24th Street NW, Suite 700 Washington, DC 20037 202-349-7958 amiller@buckleysandler.com CAMPAIGN LEGAL CENTER Adav Noti (DC Bar # 490714) Danielle M. Lang (DC Bar # 1500218) 1411 K Street NW, Suite 1400 Washington, DC 20005 202-736-2200 anoti@campaignlegalcenter.org dlang@campaignlegalcenter.org Counsel for Plaintiff Campaign Legal Center
7

 
 Case 1:18-cv-01187-TSC Document 31 Filed 06/01/20 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER, Plaintiff,
v.
U.S. Department of Justice,
Defendant.

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Civil Action No. 18-cv-1187 (TSC)

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MEMORANDUM OPINION 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 (ECF No. 12, Def. MSJ), and CLC has cross-moved for summary judgment (ECF No. 15, Pl. MSJ). For the reasons set forth below, the court will deny DOJ’s motion for summary judgment and grant CLC’s cross-motion for summary judgment.1

I. BACKGROUND Wilbur Ross became Secretary of the Department of Commerce on February 28, 2017. Roughly two months later, he emailed a subordinate, Earl Comstock, stating: “I am mystified why nothing have [sic] been done in response to my months old request that we include the citizenship question. Why not?” (ECF No. 15-5, 5/2/17 Email at 2.) Ross was referring to his request to add a

1 Due to overlapping facts and claims between this case and another case before this court, Campaign Legal Center v. DOJ, No. 18-cv-1771, portions of this opinion are identical to language in the summary judgment opinion in that case.
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question about citizenship status to the 2020 Census Questionnaire. Comstock replied the same day: “I agree Mr. Secretary . . . We need to work with Justice to get them to request that citizenship be added back as a census question, and we have the court cases to illustrate that DoJ has a legitimate need for the question to be included. I will arrange a meeting with DoJ staff this week to discuss.” (5/2/17 Email at 2.)
Secretary Ross followed up that August: “where is the DoJ in their analysis? If they still have not come to a conclusion please let me know your contact person and I will call the AG.” (ECF No. 15-6, 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. 15-7, Pl. Exh. 6, at 2). The record indicates that Secretary Ross contacted thenAttorney 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: “[Assistant Attorney General for Administration] Lee Lofthus has asked me to reach out to you to find out if you and/or [the Civil Rights Division] have any background information regarding some concerns raised that the Secretary of Commerce raised last week with the AG relating to the 2020 Census. I understand the concerns relate to potential questions relating to citizenship . . .” (ECF No. 19-2, Pl. Exh. A, at 6.) 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. 15-8, Pl. Exh. 7,
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at 2.) In the correspondence preceding the call, the DOJ employee wrote: “[f]rom what John [Gore]
told me, it sounds like we can do whatever you all need us to do and the delay was due to a
miscommunication. The AG is eager to assist.” (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:
• November 1, 2017: Gore emailed Chris Herren (Voting Section Chief) asking for comments and edits on a draft letter. (Pl. Exh. A at 57.)
• November 3, 2:05 p.m.: Herren responded: “some comments from me are included in the attached.” (Id.)
• November 3, 5:10 p.m.: Gore emailed Gary: “the draft letter that we discussed earlier this week is attached. Let’s touch base early next week once you’ve had a chance to review it.” (Id. at 13.)
• November 3, 5:35 p.m.: Bethany Pickett (Civil Rights Division) emailed Gore: “I’ve attached the letter that we discussed yesterday. I would be happy to discuss this further. Please let me know if you have any questions regarding my comments and edits.” (Id. at 56.)
• November 22: Gary replied to Gore with a revised draft. (Id. at 14.) • November 25: Gore replied, writing that he “found a few nits.” (Id. at 17.) • November 27, 12:43 p.m.: Gore emailed Rachael Tucker and Robert Troester (both
at DOJ): “Attached please find the near-final draft of the letter to Census.” (Id. at 66.) • November 27, 1:25 p.m.: Gore emailed Gary: “[a] couple more nits in the attached.” (Id. at 20.) • November 30, 4:21 p.m.: Gore emailed Gary: “I have received some nits back from the leadership offices, which are reflected in the attached redline and clean versions.” (Id. at 24.) • December 8, 3:14 p.m.: Tucker emailed Gore: “I’m working to review this quickly. Will be back in touch shortly.” (Id. at 64.) • December 8, 3:57 p.m.: Gore emailed Gary: “Attached is a redline of the letter with leadership’s final changes. With these changes, we are authorized to send.” (Id. at 34.)
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 39.) In March 2018, Secretary Ross
announced Commerce’s intention to add the citizenship question, writing that “[f]ollowing receipt
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of 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. 15-2, 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. 15-4, 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 the DOJ’s Civil Rights Division (CRT) seeking “all records pertaining to Arthur Gary’s December 12, 2017 request to the Census Bureau to add a Citizenship question to the 2020 Census Questionnaire.” (ECF No. 12-3, FOIA Request at 3.) 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.)
DOJ acknowledged receipt on February 9, 2018 and granted the request for expedited treatment. (Id. ¶ 3.) After conducting an initial search, DOJ denied CLC access to all responsive documents on February 28, 2018. (Id. ¶ 9.) CLC filed this action on May 21, 2018. (ECF No. 1.) DOJ then conducted an additional search and on September 26, 2018 released 59 pages in full or in part, while also withholding 43 pages of responsive documents in full under Exemptions 5 and 6. (Cooper Decl. ¶ 11). On November 19, 2018 DOJ released an additional 11 pages. (ECF No. 19-1, Supp. Cooper Decl. ¶ 12.)
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At this point, two issues remain. CLC contests (1) the adequacy of DOJ’s search, and (2) DOJ’s use of Exemption 5 to redact 20 pages and withhold 43 pages.
II. LEGAL STANDARD A. Summary Judgment
Summary judgment is proper where the record shows there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). “A fact is ‘material’ if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). “An issue is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Holcomb, 433 F.3d at 895. Courts must view “the evidence in the light most favorable to the non-movant[ ] and draw[ ] all reasonable inferences accordingly,” and determine whether a “reasonable jury could reach a verdict” in the non-movant’s favor. Lopez v. Council on Am.–Islamic Relations Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016).
B. FOIA FOIA cases are typically decided on motions for summary judgment. Brayton v. Office of
the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). “FOIA provides a ‘statutory right of public access to documents and records’ held by federal government agencies.” Citizens for Responsibility & Ethics in Wash. (CREW) v. U.S. Dep’t of Justice, 602 F. Supp. 2d 121, 123 (D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d 408, 413 (D.C. Cir. 1982)). Federal agencies must comply with requests and make their records available to the public unless such “information
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is exempted under [one of nine] clearly delineated statutory [exemptions].” CREW, 602 F. Supp. 2d at 123; see also 5 U.S.C. §§ 552(a)–(b). Summary judgment for the agency is only appropriate when an agency proves that it has fully discharged its FOIA obligations. Moore v. Aspin, 916 F. Supp. 32, 35 (D.D.C. 1996).
In cases challenging the applicability of certain FOIA exemptions, the district court conducts a de novo review of the agency’s decision to withhold requested documents under any of FOIA’s specific exemptions. See id; 5 U.S.C. § 552(a)(4)(B). The burden is on the agency to show that nondisclosed, requested material falls within a stated exemption. See Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)). Agencies may rely on supporting declarations that are reasonably detailed and non-conclusory. See King v. U.S. Dep’t of Justice, 830 F.2d 210, 218 (D.C. Cir. 1987) (“affidavits cannot support summary judgment if they are conclusory, merely reciting statutory standards, or if they are too vague or sweeping.”). The declarations must provide enough information “to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.” Id. at 218. “If an agency’s affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then summary judgment is warranted on the basis of the affidavit alone.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). A motion for summary judgment should be granted in favor of the FOIA requester, however, where “an agency seeks to protect material which, even on the agency’s version of the facts, falls outside the proffered exemption.” Coldiron v. U.S. Dep’t of Justice, 310 F. Supp. 2d 44, 48 (D.D.C. 2004) (quoting Petroleum Info. Corp., 976 F.2d at 1433).
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In cases where the adequacy of a search is at issue, the agency “must show beyond material doubt [] that it has conducted a search reasonably calculated to uncover all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The court employs a reasonableness test to determine whether an agency’s search for responsive materials is adequate. Rodriguez v. Dep’t of Def., 236 F. Supp. 3d 26, 34 (D.D.C. 2017) (citing Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998)). “[T]he adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search.” Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). However, “evidence that relevant records have not been released may shed light on whether the agency’s search was indeed adequate.” Weisberg, 705 F.2d at 1351. The court must accord agency affidavits “a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” Safecard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citation omitted). “It is well-established” however “that a conclusory affidavit that gives ‘no detail as to the scope of the examination . . . is insufficient as a matter of law’ in demonstrating the adequacy of the search.” Am.-Arab AntiDiscrimination Comm. v. U.S. Dep’t of Homeland Sec., 516 F. Supp. 2d 83, 87 (D.D.C. 2007) (quoting Weisberg v. U.S. DOJ, 627 F.2d 365, 370 (D.C. Cir. 1980)).
III. ANALYSIS Although “a motion for summary judgment cannot be ‘conceded’ for want of opposition,” Winston & Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016), “[t]his does not mean . . . that the Court must assess the legal sufficiency of each and every [claim] invoked by the government in a FOIA case.” Shapiro v. U.S. Dep’t of Justice, 239 F. Supp. 3d 100, 106 n.1 (D.D.C. 2017). Instead,
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[w]here the FOIA requester responds to the government’s motion for summary judgment without taking issue with the government’s decision to withhold or to redact specific documents, the Court can reasonably infer that the FOIA requester does not seek those specific records or information and that, as to those records or information, there is no case or controversy sufficient to sustain the Court’s jurisdiction. Id; see Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992). Accordingly, the court will address only CLC’s arguments in response to DOJ’s motion for summary judgment. A. Adequacy of the Search Under FOIA, an adequate search is one that is “reasonably calculated to uncover all relevant documents.” Weisberg, 705 F.2d at 1351; see Oglesby v. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990) (“[T]he agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.”). CLC requested “all records pertaining” to the Gary letter, and as noted above, it recommended eight search terms. (Cooper Decl. ¶ 2.) DOJ searched for responsive documents in the Voting Section and at the Office of the Assistant Attorney General (OAAG). (Supp. Cooper Decl. ¶¶ 4, 6.) 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. ¶ 4.) At the OAAG, the Director of Operational Management determined that Gore “was the only OAAG employee who had a substantive role in the preparation of the Gary letter.” (Id. ¶ 7.) 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). None of these searches used any of CLC’s eight suggested search terms. DOJ argues that two of the eight terms are too general, but does not address the other six. (ECF No. 19, Def. Reply at 5; Supp. Cooper Decl. ¶ 11.) This court is mindful that an agency has discretion in how it conducts a FOIA search, and that “[i]n general, a FOIA petitioner cannot dictate the search terms
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for his or her FOIA request.” Bigwood v. U.S. Dep’t of Def., 132 F. Supp. 3d 124, 140 (D.D.C. 2015). But an agency’s discretion “is not boundless; the search terms selected must pass muster under a standard of reasonableness.” Coffey v. Bureau of Land Management, 249 F. Supp. 3d 488, 498 (D.D.C. 2017) (internal quotes omitted). DOJ’s use of a single search term for all the digital records does not pass muster under that standard. It is likely that responsive digital documents exist which do not have the word “census” in them. Thus, because only one search term was used, and that term was inadequate, the search was not “reasonably calculated to uncover all relevant documents.” Weisberg, 705 F.2d at 1351. As to this issue, the court will grant summary judgment for CLC.
B. Exemption 5 CLC challenges DOJ’s invocation of Exemption 5 to redact 20 pages and withhold 43 pages.
(Pl. MSJ at 18–26; ECF No. 20 at 9–14.) Exemption 5 shields documents that would “normally [be] privileged from discovery in civil litigation against the agency,” including documents protected by the attorney-client, work-product, and deliberative process privileges. Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997). To withhold a document under Exemption 5, the “document must meet two conditions: its source must be a Government agency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Stolt-Nielsen Transp. Grp. Ltd. v. U.S., 534 F.3d 728, 733 (D.C. Cir. 2008) (citations and internal quotation marks omitted). There is no dispute that the first condition is met here; the parties’ dispute is directed to the second condition.
DOJ argues that the requested materials fall under the deliberative process privilege, which protects materials that are “predecisional” and “deliberative.” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). This case turns on the first requirement—that the withheld materials be predecisional. Documents are predecisional if they were “prepared in order to assist an agency
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decisionmaker in arriving at his decision, rather than to support a decision already made.” Petroleum Info. Corp., 976 F.2d at 1434 (citations and internal quotation marks omitted). Here, the contested documents consist of 11 drafts of the letter from Gary to Dr. Ron Jarmin as well as redactions from 20 pages of related emails. (ECF No. 12-2 at ¶ 13.)
CLC argues that none of the documents are predecisional because they were created after Commerce decided to add the citizenship question to the Census and after DOJ decided to issue the letter requesting that question. (Pl. MSJ at 21–22.) Defendant does not dispute this timeline, but argues that the documents are predecisional because they were created before the letter was finalized. (Def. Reply at 6–7.) The parties thus agree on the sequence of events, but disagree about what constitutes the relevant agency decision: the decision to write the letter, or the decision about the letter’s final contents.
The inquiry can be circular. Indeed, every draft postdates the decision to write it, and simultaneously predates the decision of what to include in it. Such is the case here: the drafting process postdated Attorney General Session’s decision to issue the letter, but undeniably predated the decision about the final contents of the letter. In this regard, Plaintiff and Defendant are both right: the disputed materials are predecisional, but they are also postdecisional. The ultimate question is what constitutes the relevant decision for Exemption 5.
As Wright & Miller have observed, “[d]efining ‘decision’ for purposes of the privilege is no easy task.” 26A Charles Alan Wright et al., Fed. Practice & Procedure § 5680 (1st ed. 1992). Though there is no well-established test for identifying the relevant decision, cases in this Circuit do provide some guidance. First, they suggest that the relevant decision in any given case is one that involves discretion about what an agency position or agency policy should be.2 The D.C. Circuit
2 This does not mean that a relevant agency decision must involve a formal policy. See Gold AntiTrust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F. Supp. 2d 123, 135-36
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has held, for example, that documents did not fall under Exemption 5 because they “were not suggestions or recommendations as to what agency policy should be.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980) (emphasis added). The Court later elaborated on this principle:
To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment . . . [W]hen material could not reasonably be said to reveal an agency’s or official’s mode of formulating or exercising policy-implicating judgment, the deliberative process privilege is inapplicable. Petroleum Info. Corp., 976 F.2d at 1435 (D.C. Cir. 1992). Consistent with this language, this Circuit has held that drafts showing the exercise of “agency policy-oriented judgment” are in fact predecisional. See Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002). In Dudman Commc’ns Corp. v. Dep’t of Air Force, 815 F.2d 1565, 1565 (D.C. Cir. 1987), the D.C. Circuit withheld a preliminary draft of a historical work published by the Air Force about operations in South Vietnam between 1961 and 1964. The drafting process involved decisions about the agency’s historical conclusions and representations to the public. Id. at 1566. In Radiation Sterilizers, Inc. v. U.S. Dep’t of Energy, No. 90-880, 1991 U.S. Dist. LEXIS 4669 (D.D.C. Apr. 9, 1991), the Court withheld documents from a drafting process that determined what data and conclusions should be included in an interim report to Congress about a chemical leak. Likewise, in Brown v. Dept. of State, 317 F. Supp. 3d 370, 370
(D.D.C. 2011) (“even if an internal discussion does not lead to the adoption of a specific government policy, its protection under Exemption 5 is not foreclosed as long as the document was generated as part of a definable decision-making process.”) (citing Petroleum Info. Corp. v. U.S. Dep’t of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).
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(D.D.C. 2018), the court withheld documents produced in preparation for court filings and for a letter to Congress.
The facts of this case are significantly different. The letter at issue did not involve discretion about an agency position or about the primary reasons for the agency position. The agency’s position and the reasons for the letter had already been decided. Thus, the drafting did not demonstrate “the process by which policy is formulated,” nor could it “reasonably be said to reveal an agency’s or official’s mode of formulating or exercising policy-implicating judgment.” Petroleum Info. Corp., 976 F.2d at 1434 (D.C. Cir. 1992).
Moreover, Gary and Gore were not drafting the document so that a supervisor or colleague could decide a particular issue. In Coastal States, the D.C. Circuit held that “a document from a subordinate to a superior official is more likely to be predecisional.” 617 F.2d at 868. This is because such documents generally aid in the decisionmaking process about an agency’s position. Thus, in Access Reports v. Dep’t of Justice, the D.C. Circuit upheld withholding a document that a low-level employee created for supervisors who had asked for research on a particular issue. 926 F.2d 1192, 1196-97 (D.C. Cir. 1991). Such documents are quintessentially predecisional—they are created to help the agency make a decision. See Krikorian v. Dept. of State, 984 F.2d 461, 466 (D.C. Cir. 1993) (withholding a document from subordinates to supervisors that proposed two options for how to respond to public inquiries about a recent agency decision regarding a genocide); United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 29, 44 (D.D.C. 2008) (withholding investigative notes that were provided to an office to assist it in writing a report to employees about identity theft against the agency); Blank Rome LLP v. Dep’t of the Air Force, No. 15-cv-1200 (RCL), 2016 U.S.
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Dist. LEXIS 128209, at *14, *35 (D.D.C. Sept. 20, 2016) (withholding draft documents that assisted the Air Force in coming to a decision regarding a settlement proposal).
Here, the contested documents do not fit that mold. They were not used to help the agency make a decision, but rather were used to communicate the decision.3 If the materials in question were drafts of documents that Gore and Gary prepared for Attorney General Sessions before he decided to request the citizenship question, they would be squarely predecisional. But that was not their purpose. While Gore did email the draft to supervisors before it was sent to the Census Bureau, it is telling that in the email he wrote that he was sending them a “near-final” draft. (Def. Exh. A at 66.) In other words, the draft was not provided to supervisors to help them make a decision. The decision had already been made, and the supervisors were reviewing Gore’s implementation of it. (See id.)
The court is mindful of the D.C. Circuit’s directive that Exemption 5 should be construed narrowly. “In light of the FOIA’s strong policy in favor of disclosure . . . Exemption 5 is to be construed as narrowly as consistent with efficient Government operation.” Petroleum Info. Corp., 976 F.2d at 1434 (internal quotations omitted); see also Wolfe v. Dep’t of Health and Human Servs., 839 F.2d 768, 773 (D.C. Cir 1988). Consequently, the court finds that the relevant decision for purposes of Exemption 5 is the one made by Attorney General Sessions to request the citizenship question, not the decision about the final contents of the letter. The emails sent and the drafts
3 Decisions about how to message agency policy to the public can be predecisional. See Hooker v. HHS, 887 F. Supp. 2d. 40, 40 (D.D.C. 2012) (withholding drafts of a publication about vaccine safety); Hunton & Williams LLP v. U.S. EPA, Civ. A. No. 15-1203, 2018 U.S. Dist. LEXIS 166174 at *9 (D.D.C. Sept. 27, 2018) (withholding drafts of letters to non-profits and emails discussing communications strategy); Sierra Club v. U.S. Dep’t of Interior, 384 F. Supp. 2d 1, 20 (D.D.C. 2004) (withholding documents related to the agency’s response to a congressional inquiry.) In fact, a court recently held that the contested documents in this case constituted “messaging.” See New York v. U.S. Dep’t of Commerce, Civ. A. No. 18-2921, 2018 U.S. Dist. LEXIS 1772468 at *20 (S.D.N.Y. Oct. 5, 2018). These cases are inapplicable here because DOJ concedes that the withheld materials are not messaging documents. (Def. Reply at 15 n.3.)
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written after that decision are thus not predecisional and cannot be withheld under Exemption 5.

Because the documents are not predecisional, the court need not decide whether they are

deliberative.

IV. CONCLUSION

Because DOJ’s search was inadequate and the withheld materials are not protected by

Exemption 5, Defendant’s motion for summary judgment will be DENIED and CLC’s cross-motion

for summary judgment will be GRANTED. A corresponding Order will follow shortly.

Date: June 1, 2020

Tanya S. Chutkan
TANYA S. CHUTKAN United States District Judge

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