CLOSED,TYPE I-FOIA
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:18-cv-00871-ABJ

ARAB AMERICAN INSTITUTE v. OFFICE OF MANAGEMENT AND BUDGET Assigned to: Judge Amy Berman Jackson Demand: $0 Cause: 05:552 Freedom of Information Act

Date Filed: 04/13/2018 Date Terminated: 08/13/2020 Jury Demand: None Nature of Suit: 895 Freedom of Information Act Jurisdiction: U.S. Government Defendant

Plaintiff ARAB AMERICAN INSTITUTE

represented by Allison Rochford BAKER & HOSTETLER LLP 1050 Connecticut Avenue, NW Suite 1100 Washington, DC 20036 202-861-1778 Email: arochford@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay Patricia Holmes BAKER & HOSTETLER LLP 1050 Connecticut Avenue, NW Suite 1100 Washington, DC 20036 (202) 861-1746 Fax: (202) 861-1783 Email: lholmes@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark I. Bailen BAKER & HOSTETLER LLP 1050 Connecticut Avenue, NW Suite 1100 Washington, DC 20036 (202) 861-1715 Fax: (202) 861-1783

V.
Defendant
OFFICE OF MANAGEMENT AND BUDGET

Email: mbailen@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Aaron Caplen UNITED STATES ATTORNEY'S OFFICE 555 4th Street, NW Washington, DC 20530 (202) 252-2523 Email: robert.caplen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Leeson Sroka U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-7113 Fax: (202) 252-2599 Email: scott.sroka@usdoj.gov TERMINATED: 03/12/2020

Date Filed # 04/13/2018
1
04/13/2018 04/16/2018 2

Docket Text
COMPLAINT against OFFICE OF MANAGEMENT AND BUDGET ( Filing fee $ 400 receipt number 0090-5422281) filed by ARAB AMERICAN INSTITUTE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Bailen, Mark) (Entered: 04/13/2018)
Case Assigned to Judge Amy Berman Jackson. (zsth) (Entered: 04/16/2018)
SUMMONS (3) Issued Electronically as to OFFICE OF MANAGEMENT AND BUDGET, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zsth) (Entered: 04/16/2018)

04/20/2018 3 04/24/2018 4 04/24/2018 5
05/11/2018 6 05/11/2018 7 05/17/2018
8 05/18/2018 9
06/15/2018 10 06/18/2018
07/13/2018 11

NOTICE of Appearance by Scott Leeson Sroka on behalf of All Defendants (Sroka, Scott) (Entered: 04/20/2018)
RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/17/2018. (Bailen, Mark) (Entered: 04/24/2018)
RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/17/2018. Answer due for ALL FEDERAL DEFENDANTS by 5/17/2018. (Bailen, Mark) (Entered: 04/24/2018)
NOTICE of Appearance by Allison Rochford on behalf of ARAB AMERICAN INSTITUTE (Rochford, Allison) (Entered: 05/11/2018)
NOTICE of Appearance by Lindsay Patricia Holmes on behalf of ARAB AMERICAN INSTITUTE (Holmes, Lindsay) (Entered: 05/11/2018)
ANSWER to Complaint by OFFICE OF MANAGEMENT AND BUDGET.(Sroka, Scott) (Entered: 05/17/2018)
ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff, on or before June 15, 2018. See Order for details. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/18/2018. (lcabj2) (Entered: 05/18/2018)
STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 06/15/2018)
MINUTE ORDER. Defendant must make its initial production of documents by July 13, 2018, and the parties must meet and confer and submit a joint status report and schedule for further proceedings by July 13, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/18/2018. (lcabj2) (Entered: 06/18/2018)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 07/13/2018)

07/16/2018 10/01/2018 12 10/01/2018 12/03/2018 13 12/04/2018 01/11/2019 14 01/14/2019
01/29/2019 15 01/29/2019
02/14/2019 16

MINUTE ORDER. The parties must file a joint status report by October 1, 2018 informing the Court of the status of the production of documents. SO ORDERED. Signed by Judge Amy Berman Jackson on 7/16/2018. (lcabj2) (Entered: 07/16/2018)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 10/01/2018)
MINUTE ORDER. The parties must file another joint status report by December 3, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/01/2018. (lcabj2) (Entered: 10/01/2018)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 12/03/2018)
MINUTE ORDER. The parties must file another status report by January 22, 2019. Signed by Judge Amy Berman Jackson on 12/4/2018. (lcabj2) (Entered: 12/04/2018)
Unopposed MOTION to Stay , MOTION for Extension of Time to in Light of Lapse of Appropriations by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Hudak, Brian) (Entered: 01/11/2019)
MINUTE ORDER granting 14 Motion to Stay. Defendant must notify the Court within two business days of the resumption of government operations and propose a revised schedule for the production of documents and filing of a status report, if necessary. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/14/2019. (lcabj2) (Entered: 01/14/2019)
NOTICE of Restored Government Funding by OFFICE OF MANAGEMENT AND BUDGET re Order on Motion to Stay,, Order on Motion for Extension of Time to, (Sroka, Scott) (Entered: 01/29/2019)
MINUTE ORDER. In light of the defendant's notice 15 , the Court's January 14, 2019 minute order granting a stay in this case is hereby lifted. The parties must file a joint status report proposing a revised schedule for production by February 14, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/29/2019. (lcabj2) (Entered: 01/29/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 02/14/2019)

02/19/2019 03/07/2019 17 03/08/2019 04/08/2019 18 04/09/2019 05/08/2019 19 05/09/2019 06/10/2019 20 06/11/2019 07/10/2019 21 07/11/2019 08/12/2019 22 08/12/2019 08/20/2019 23

MINUTE ORDER. The parties must file another status report by March 7, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/19/2019. (lcabj2) (Entered: 02/19/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 03/07/2019)
MINUTE ORDER. The parties must file another status report by April 8, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/8/2019. (lcabj2) (Entered: 03/08/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 04/08/2019)
MINUTE ORDER. The parties must file another status report by May 8, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 4/9/2019. (lcabj2) (Entered: 04/09/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 05/08/2019)
MINUTE ORDER. The parties must file another status report by June 10, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/9/2019. (lcabj2) (Entered: 05/09/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 06/10/2019)
MINUTE ORDER. The parties must file another status report by July 10, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/11/2019. (lcabj2) (Entered: 06/11/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 07/10/2019)
MINUTE ORDER. The parties must file another status report by August 12, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 7/11/2019. (lcabj2) (Entered: 07/11/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 08/12/2019)
MINUTE ORDER. The parties must file another status report by August 20, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/12/2019. (lcabj2) (Entered: 08/12/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 08/20/2019)

08/22/2019 09/20/2019 24 10/01/2019 10/21/2019 25 10/22/2019 11/04/2019 26 11/06/2019
11/06/2019 27 11/07/2019 11/20/2019 28 11/25/2019

MINUTE ORDER. The parties must file another status report by September 20, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/22/2019. (lcabj2) (Entered: 08/22/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 09/20/2019)
MINUTE ORDER. The parties must file another status report by October 21, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/1/2019. (lcabj2) (Entered: 10/01/2019)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 10/21/2019)
MINUTE ORDER. The parties must file another status report by November 4, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/22/2019. (lcabj2) (Entered: 10/22/2019)
ENTERED IN ERROR.....Joint STATUS REPORT by ARAB AMERICAN INSTITUTE. (Rochford, Allison) Modified on 11/7/2019 (znmw). (Entered: 11/04/2019)
NOTICE OF ERROR re 26 Status Report; emailed to arochford@bakerlaw.com, cc'd 6 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. FYI - DO NOT REFILE - Login/Password must match attorney signature on pleading(s) (zjf, ) (Entered: 11/06/2019)
Joint STATUS REPORT by ARAB AMERICAN INSTITUTE. (Rochford, Allison) (Entered: 11/06/2019)
MINUTE ORDER. The parties must file another status report by November 20, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 11/7/2019. (lcabj2) (Entered: 11/07/2019)
Joint STATUS REPORT AND PROPOSED SCHEDULING ORDER by ARAB AMERICAN INSTITUTE. (Rochford, Allison) (Entered: 11/20/2019)
MINUTE ORDER. In light of the parties joint status report 28 , the Court will enter the following briefing schedule: Defendant's motion for summary judgement will be due on January 21, 2020. Plaintiff's opposition and cross-motion for summary judgment, to be supported by a single memorandum of law, will be due on February 21, 2020. Defendant's reply and cross-opposition, to be supported by a single memorandum of law, will be due on March 20, 2020. Plaintiff's reply will be due on April 3, 2020. SO ORDERED.

01/21/2020 29 01/21/2020
01/31/2020 30 02/10/2020 31 02/10/2020 32 02/10/2020 33 02/11/2020
03/12/2020 34

Signed by Judge Amy Berman Jackson on 11/25/2019. (lcabj2) (Entered: 11/25/2019)
Consent MOTION for Extension of Time to File Motion for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Sroka, Scott) (Entered: 01/21/2020)
MINUTE ORDER granting 29 Motion for Extension of Time. Defendant's motion for summary judgement will be due on February 4, 2020. Plaintiff's opposition and cross-motion for summary judgment, to be supported by a single memorandum of law, will be due on March 6, 2020. Defendant's reply and crossopposition, to be supported by a single memorandum of law, will be due on April 3, 2020. Plaintiff's reply will be due on April 17, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/21/2020. (lcabj2) (Entered: 01/21/2020)
MOTION for Summary Judgment and Supporting Memorandum by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Statement of Facts and Proposed Order)(Sroka, Scott) (Entered: 01/31/2020)
ERRATA by OFFICE OF MANAGEMENT AND BUDGET 30 MOTION for Summary Judgment and Supporting Memorandum filed by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 02/10/2020)
MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Statement of Facts, # 2 Declaration and Exhibits)(Sroka, Scott) (Entered: 02/10/2020)
Joint MOTION to Modify the BRIEFING SCHEDULE by ARAB AMERICAN INSTITUTE (Rochford, Allison) (Entered: 02/10/2020)
MINUTE ORDER granting 33 joint motion to modify the briefing schedule. Plaintiff's opposition and cross-motion for summary judgment, to be supported by a single memorandum of law, will be due on March 12, 2020. Defendant's reply and cross-opposition, to be supported by a single memorandum of law, will be due on April 9, 2020. Plaintiff's reply will be due on April 23, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/11/2020. (lcabj2) (Entered: 02/11/2020)
Cross MOTION for Summary Judgment by ARAB AMERICAN INSTITUTE (Attachments: # 1 Memorandum in Support, # 2

03/12/2020 35 03/16/2020 03/16/2020 36 03/27/2020 37 03/27/2020 05/13/2020 38 05/13/2020 39 05/13/2020 40

Statement of Facts With Exhibit, # 3 Text of Proposed Order)(Rochford, Allison) (Entered: 03/12/2020)
NOTICE OF SUBSTITUTION OF COUNSEL by Robert Aaron Caplen on behalf of OFFICE OF MANAGEMENT AND BUDGET Substituting for attorney Scott Leeson Sroka (Caplen, Robert) (Entered: 03/12/2020)
NOTICE OF ERROR re 34 Motion for Summary Judgment; emailed to arochford@bakerlaw.com, cc'd 7 associated attorneys -The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Please refile document, 3. Under the OPPOSITION event (zjf, ) (Entered: 03/16/2020)
Memorandum in opposition to re 30 MOTION for Summary Judgment and Supporting Memorandum, 32 MOTION for Summary Judgment filed by ARAB AMERICAN INSTITUTE.
(Attachments: # 1 Statement of Facts and Exhibit, # 2 Text of Proposed Order)(Rochford, Allison) (Entered: 03/16/2020)
Unopposed MOTION for Extension of Time to File Response/Reply as to 34 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment, 32 MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Caplen, Robert) (Entered: 03/27/2020)
MINUTE ORDER granting 37 Motion for Extension of Time. Defendant's reply and cross-opposition, to be supported by a single memorandum of law, will be due on May 13, 2020. Plaintiff's reply will be due on May 28, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/27/2020. (lcabj2) (Entered: 03/27/2020)
Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Caplen, Robert) (Entered: 05/13/2020)
Memorandum in opposition to re 34 Cross MOTION for Summary Judgment filed by OFFICE OF MANAGEMENT AND BUDGET.
(Attachments: # 1 Statement of Facts, # 2 Supplemental Declaration of Heather V. Walsh and Revised Vaughn Index, # 3 Text of Proposed Order)(Caplen, Robert) (Entered: 05/13/2020)
REPLY to opposition to motion re 32 MOTION for Summary Judgment (same as ECF 39) filed by OFFICE OF

05/28/2020 41 05/28/2020 42 07/24/2020
07/31/2020 43 08/13/2020 44
08/13/2020 45

MANAGEMENT AND BUDGET. (Attachments: # 1 Statement of Facts, # 2 Supplemental Declaration of Heather V. Walsh and Revised Vaughn Index)(Caplen, Robert) (Entered: 05/13/2020)
REPLY to opposition to motion re 34 Cross MOTION for Summary Judgment Plaintiff's Reply in further support of Motion for Summary Judgment (and Opposition to Defendant's Motion for Summary Judgment) filed by ARAB AMERICAN INSTITUTE. (Rochford, Allison) (Entered: 05/28/2020)
Memorandum in opposition to re 32 MOTION for Summary Judgment (re Cross-Motion: same as ECF No. 41) filed by ARAB AMERICAN INSTITUTE. (Rochford, Allison) (Entered: 05/28/2020)
MINUTE ORDER. In order to assist the Court in making a responsible de novo determination, defendant is directed to deliver to chambers for in camera inspection, by July 31, 2020, the five documents at issue that have been withheld pursuant to FOIA Exemption 5: (1) OMB183FY18176_000000702; (2) OMB183FY18176_000000752; (3) OMB183FY18176_000000321; (4) OMB183FY8176_000000764; and (5) OMB183FY18176_0000003026. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). SO ORDERED. Signed by Judge Amy Berman Jackson on 7/24/2020. (lcabj2) (Entered: 07/24/2020)
NOTICE re July 24, 2020, Minute Order by OFFICE OF MANAGEMENT AND BUDGET (Caplen, Robert) (Entered: 07/31/2020)
ORDER. Pursuant to Federal Rules of Civil Procedure 56 and 58, and the accompanying Memorandum Opinion, it is hereby ORDERED that defendant's motion for summary judgment 30 is GRANTED and plaintiff's cross-motion for summary judgment 34 is DENIED. This is a final, appealable order. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/13/2020. (lcabj2) (Entered: 08/13/2020)
MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 8/13/2020. (lcabj2) (Entered: 08/13/2020)

PACER Service Center Transaction Receipt
12/25/2020 13:26:55

PACER Login: crclearinghouse Client Code: Rogers

Description: Docket Report Search Criteria: 1:18-cv-00871-ABJ

Billable Pages: 5

Cost:

0.50

Exempt flag: Not Exempt Exempt reason: Not Exempt

 
 Case 1:18-cv-00871-ABJ Document 1 Filed 04/13/18 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ARAB AMERICAN INSTITUTE,

)

1600 K Street, NW Ste 601

)

Washington, D.C. 20006

)

)

Plaintiff

)

)

v.

)

)

OFFICE OF MANAGEMENT AND BUDGET )

1800 G Street NW, Room 9026

)

Washington, DC 20503

)

)

Defendant.

)

~~~~~~~~~~~~~~~~~~)

Civil Action No. 18-871

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF 1. This is an action under the Freedom oflnformatin Act ("FOIA"), 5 U.S.C. § 552, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, for injunctive, declaratory and other appropriate relief. Plaintiff, Arab American Institute ("AAI"), challenges the failure of the Office of Management and Budget ("OMB") to disclose to AAI requested FOIA records relating to OMB inaction, which due to time constraints of the Census process, forced a default decision regarding an anticipated change to the current U .S. Census Bureau ("USCB") standards. Announced on January 26, 2018, USCB stated it will not use a combined question format for race and ethnicity, and will not include a separate 'Middle Eastern or North African' ("MENA") category. 2. This action seeks a declaratory judgment that OMB is in violation ofFOIA, 5 U.S.C. §§ 552(a)(6)(A)(i), and (a)(8), by refusing to respond to AAI's FOIA request and refusing to search for and provide AAI with all responsive documents sought. Further, this action seeks

Case 1:18-cv-00871-ABJ Document 1 Filed 04/13/18 Page 2 of 6
injunctive relief ordering the Defendant to process and release to AAI the requested records in their entirety.
Jurisdiction and Venue 3. This court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B). The Court also has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 , 2201(a), and 2202. Venue lies in this district under 5 U.S .C. § 552(a)(4)(B).
Parties 4. Plaintiff AAI is a non-profit, nonpartisan national leadership organization organized under Section 501 (c)(4) of the Internal Revenue Code. AAI was created to nurture and encourage the direct participation of Arab Americans in political and civic life in the United States. AAI represents the policy and community interests of Arab Americans throughout the United States. AAI strives to serve as a central resource to government officials, the media, political leaders and community groups on a variety of public policy issues that concern Arab Americans and U.S.-Arab relations. As part of its mission, AAI serves as a U.S. Census Bureau Census Information Center ("CIC") partner and uses government records made available to it under FOIA to further this work. 5. Defendant OMB is an agency within the meaning of 5 U.S.C. § 552(£) and 5 U.S.C. § 701. The OMB is an office within the Executive Office of the President of the United States. OMB is the federal agency with possession and control of the requested records and is responsible for fulfilling Plaintiffs FOIA request.
Facts 6. Over the last three decennial censuses, AAI served as an advocate on behalf of the Arab American community through the CIC Network and the Decennial Census Advisory Committee which are outgrowths of the USCB.
-2-

Case 1:18-cv-00871-ABJ Document 1 Filed 04/13/18 Page 3 of 6
7. Through this work, AAI works on questions of classification of the Arab American community and encourages the USCB to broaden its options pertaining to ancestry, race, and ethnicity.
8. On January 26, 2018, the USCB issued a communication to CIC partners that OMB standards regarding race and ethnicity questions would remain unchanged from the 1997 format.
9. By letter dated February 16, 2018, delivered via facsimile, AAI submitted a FOIA request to OMB for the following:
a) Any and all communications involving members of the Interagency Working Group for Research on Race and Ethnicity ("IWG") that discuss, mention, or otherwise reference the classification of a MENA group and distinct reporting category, or revisions to the Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity occurring between January 20, 2017 and the date the search is conducted; b) Any and all communications, electronic or otherwise, on the topic of the classification of a MENA group and distinct reporting category, or revisions to the Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity occurring between January 20, 2017 and the date the search is conducted and involving the following personnel: Karen Battle, Angela Brittingham Buchanan, Anthony Campau, Ilona Cohen, John Czwartacki, Emma Doyle, James Galkowski, Ron Jarmin, Jeffrey Harris, Nicholas Jones, Enrique Lamas, Domini Mancini, Rachel Marks, Mick Mulvaney, Rosario Palmieri, Jennifer Park, Beverly Pratt, Roberto Ramirez, Neomi Rao, Hyon Shin, and Merarys Rios Vargas; c) Any and all memoranda, statements, or documents provided to any OMB employee; reviewed by any OMB employee; relied upon by any OMB employee; or drafted, signed,
-3-

Case 1:18-cv-00871-ABJ Document 1 Filed 04/13/18 Page 4 of 6
authorized or issued by any OMB employee related to the classification of a MENA group and distinct reporting category, or revisions to the Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity occuning between January 20, 2017 and the date the search is conducted; d) Any and all IWG findings , recommendations, or conclusory materials sent to OMB between January 20, 2017 and the date the search is conducted pursuant to the planned issuance of a Federal Register Notice for December 2017; and e) Records describing the processing of this request, including records sufficient to identify search terms used and locations and custodians searched, and any tracking sheets used to track the processing of this request. If OMB uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, we also request any such records prepared in connection with the processing of this request. 10. AAI's February 16, 2018 letter to OMB also requested expedited processing of its FOIA request in light of the urgency and timeline ofUSCB ' s report to Congress on the matter. 11. By an email dated February 21 , 2018, OMB acknowledge receipt of AAI's request and stated the request was in process (OMB FOIA number 2018-176). 12. Since OMB ' s email on February 21 , 2018, AAI has received no response or communication from OMB regarding its FOIA request despite follow-up with the OMB ' s FOIA Request Service Center. OMB has not notified AAI in writing of unusual circumstances requiring a delay of its response pursuant to 5 U.S.C . § 552(a)(6)(B).
-4-

Case 1:18-cv-00871-ABJ Document 1 Filed 04/13/18 Page 5 of 6
13. AAI is deemed to have met the administrative exhaustion requirement as OMB did not make a determination within the statutory time period, see Citizens for Responsibility & Ethics in Washington v. Fed. Election Comrn'n, 711F.3d180 (D.C. Cir. 2013).
Plaintiff's Claim for Relief Claim I
OMB's Failure to Respond to FOIA Request 14. Plaintiff repeats, realleges, and incorporates by reference paragraphs 1-12 as though fully set forth therein. 15. Plaintiff properly requested records within the custody and control of OMB pursuant to FOIA. 16. Defendant OMB received and acknowledged Plaintiff's request for documents. 17. To date, defendant OMB has failed to conduct a search for responsive records, and to provide AAI will all responsive, non-exempt documents, nor has it cited a legal basis for its failure to respond. 18. Plaintiff has a statutory right to the records it seeks, and there is no legal basis for the defendant OMB's refusal to disclose them. 19. Therefore, by failing to release the records specifically requested by the Plaintiff, defendant OMB had violated FOIA.
Requested Relief WHEREFORE, Plaintiff respectfully requests that this Court:
(1) Declare that the records sought by the Plaintiff are subject to FOIA; (2) Declare that the Plaintiff is entitled to immediate processing and disclosure of the requested records;
- 5-

Case 1:18-cv-00871-ABJ Document 1 Filed 04/13/18 Page 6 of 6

(3) Declare that the failure of the Defendant to review and release records responsive to Plaintiffs request is unlawful; (4) Order Defendant to fully and expeditiously process Plaintiffs February 16, 2018 FOIA request and disclose all responsive records immediately to the Plaintiff; (5) Retain jurisdiction ofthis action to ensure that no agency records are wrongfully withheld; (6) Award Plaintiff its costs and reasonable attorneys' fee in this action pursuant to 5 U.S.C. § 552(a)(4)(E); and (7) Grant such other relief as the Court may deem just and proper.

Dated: April 13, 2018

Respectfully submitted, BAKER HOSTETLER LLP

By: Mark B · en (D.C. Bar No. 459623) Baker Hostetler LLP 1050 Connecticut Ave, N.W. , Suite 1100 Washington, DC 20036-5304 (202) 861-1715 (tel.) (202) 861-1783 (fax) mbailen@,bakerlaw.com
OfCounsel1 Lindsay Holmes (D.C. Bar No. 1013559) Allison Rochford (D.C. Bar No. 1500090) Baker Hostetler LLP 1050 Connecticut Ave, N.W., Suite 1100 Washington, DC 20036-5304 (202) 861-1500 (tel.) lholmes@,bakerlaw.com arochford@bakerlaw.com
Attorneysfor Plaintiff
1 Admissions to the U.S. District Court for the District ofColumbia will be pending upon forthcoming applications.
- 6-

 
 Case 1:18-cv-00871-ABJ Document 45 Filed 08/13/20 Page 1 of 14

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________

)

ARAB AMERICAN INSTITUTE,

)

)

Plaintiff,

)

)

v.

)

)

OFFICE OF MANAGEMENT

)

AND BUDGET,

)

)

Defendant.

)

____________________________________)

Civil Action No. 18-0871 (ABJ)

MEMORANDUM OPINION Plaintiff Arab American Institute has sued the Office of Management and Budget (“OMB”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq. Compl. [Dkt. # 1]. Plaintiff requested documents in connection with whether “Middle Eastern and North African” would be included as a race reporting category on the 2020 Census. OMB conducted a search and released a number of records to plaintiff, but it withheld 161 documents in full pursuant to FOIA Exemption 5. Def.’s Statement of Undisputed Material Facts [Dkt. # 32-1] (“Def.’s SUMF”) ¶ 6; Pl.’s Statement of Undisputed Material Facts [Dkt. # 34-2] (“Pl.’s SUMF”) at 1, ¶ 6. At issue is the withholding of five of those documents. On January 31, 2020, defendant filed a motion for summary judgment. Def.’s Mot. for Summ. J. [Dkt. # 30]; Def.’s Corrected Mot. for Summ. J. [Dkt. # 32] (“Def.’s Mot.”). Plaintiff opposed the motion and filed its own cross-motion for summary judgment on March 12, 2020. Pl.’s Cross-Mot. for Summ. J. [Dkt. # 34] (“Pl.’s Cross-Mot.”). On July 24, 2020, the Court called for the documents for in-camera review. Min. Order (July 24, 2020). Upon review of the parties’ briefs and the full record in the case, including the documents themselves, the Court will grant

Case 1:18-cv-00871-ABJ Document 45 Filed 08/13/20 Page 2 of 14

defendant’s motion for summary judgment and deny plaintiff’s cross-motion for summary

judgment.

BACKGROUND Plaintiff Arab American Institute serves as an advocate for the Arab American community,

specifically within the political and civil spheres in the United States. Pl.’s SUMF at 2, ¶ 1.

Plaintiff also serves as a partner to the U.S. Census Bureau Census Information Center. Id. In that

role, plaintiff “works on questions of classification of the Arab American community and

encourages the [Census Bureau] to broaden its options pertaining to ancestry, race, and ethnicity.”

Compl. ¶ 7.

The Census Bureau is part of the U.S. Department of Commerce. Who We Are, United

States Census Bureau, https://www.census.gov/about/who.html (last visited Aug. 13, 2020). OMB

is part of the Executive Office of the President of the United States. See Office of Management

and Budget, White House, https://www.whitehouse.gov/omb/ (last visited Aug. 13, 2020). OMB

creates the standards for maintaining, collecting, and presenting federal data on race and ethnicity,

see Standards for Maintaining, Collecting, and Presenting Federal Data on Race & Ethnicity, 81

Fed. Reg. 67,398-10 (Sept. 30, 2016), and the Census Bureau is required to adhere to the standards

on race and ethnicity set by OMB.

About, United States Census,

https://www.census.gov/topics/population/race/about.html (last visited Aug. 13, 2020).

To help make its decision on whether it should change the previous race and ethnicity

standards to include a “Middle Eastern or North African” category, OMB formed an Interagency

Working Group for Research on Race and Ethnicity (“IWG”). See Pl.’s FOIA Request, Ex. 1 to

Declaration of Heather V. Walsh [Dkt. # 32-2] (“FOIA Request”); Declaration of Heather Walsh

[Dkt. # 32-2] (“Walsh Decl.”). ¶ 5. As a Census Bureau Census Information Partner, plaintiff

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“participated in and paid close attention to” OMB’s years-long evaluation of adding this race category to its standards. Pl.’s SUMF at 2, ¶ 2.
The Census Bureau needed to make a decision on the design of the race and ethnicity questions by December 31, 2017 in order to prepare for the 2020 Census. Jan. 26, 2018 Census Program Memo., Ex. 1 to Pl.’s SUMF [Dkt. # 34-2]. That year, OMB did not revise its standards, and on January 26, 2018, the Census Bureau announced that the “Middle Eastern and North African” category would not be added to the 2020 Census. Id. at 2.
On February 18, 2018, to better understand “OMB’s inaction,” Compl. ¶ 1, plaintiff submitted a FOIA request seeking records in “four specified categories relating to the work of OMB’s [IWG] and the classification of a ‘Middle Eastern or North African’ . . . group as a distinct reporting category, or revisions to OMB’s Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.” Def.’s SUMF ¶ 2; Pl.’s SUMF at 1, ¶ 2; see FOIA Request at 2. Plaintiff requested that the agency expedite its processing of the request. FOIA Request at 5.
On February 21, 2018, OMB acknowledged receipt of plaintiff’s FOIA request and assigned it OMB FOIA Number 2018-176. Def.’s SUMF ¶ 3; Pl.’s SUMF at 1, ¶ 3. On March 1, 2018, OMB started searching for responsive documents, Def.’s SUMF ¶ 4; Pl.’s SUMF at 1, ¶ 4, but it did not respond to the request to expedite processing, and it did not inform plaintiff within twenty working days that it would comply with the FOIA request by producing documents or indicate the scope of the documents that it would produce in accordance with 5 U.S.C. § 552(a)(6)(A)(i). Pl.’s SUMF ¶¶ at 3, 6–7. On April 13, 2018, plaintiff filed this lawsuit, see Compl., and on May 18, 2018, the Court ordered OMB to file a report setting forth a production schedule by June 15, 2018. Order [Dkt. # 9]. The parties conferred, and they agreed that defendant
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would review the collected documents at a rate of 300 documents per month. Def.’s SUMF ¶ 6; Pl.’s SUMF at 1, ¶ 6.
OMB identified 291 responsive documents, and through seven productions and one supplemental production, it produced 131 of those documents in full or in part with redactions under the deliberative process privilege encompassed by FOIA Exemption 5. OMB withheld the remaining 161 documents in full under the deliberative process privilege. Def.’s SUMF ¶ 6; Pl.’s SUMF at 1, ¶ 6.
On January 31, 2020, defendant filed a motion for summary judgment, representing that the parties had narrowed the withholdings being challenged by plaintiff to nine documents, and arguing that it had lawfully withheld the nine documents pursuant to FOIA Exemption 5. Def.’s Mot. On March 12, 2020, plaintiff opposed the motion and filed a cross-motion for summary judgment. Pl.’s Cross-Mot.; Pl.’s Cross-Mem. of Law in Supp. of Pl.’s Opp. to Def.’s Mot. & Pl.’s Cross-Mot. [Dkt. # 34-1] (“Pl.’s Cross-Mem.”). On May 13, 2020, the parties filed a joint status report stating that they had resolved their dispute as to four of the nine documents. Joint Status Report [Dkt. # 38].
On July 24, 2020, the Court determined that in-camera review of the remaining five records would aid it in making a responsible, de novo ruling on defendant’s claim that FOIA Exemption 5 was applicable. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). It ordered defendant to produce the documents at issue for inspection. Min. Order (July 24, 2020). Defendant complied with that order on July 31, 2020. Notice [Dkt. # 43].
STANDARD OF REVIEW Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). When the court is presented with cross-motions for summary judgment, it analyzes the underlying facts and inferences in each party’s motion in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
The mere existence of a factual dispute is insufficient to preclude summary judgment. Id. at 247–48. A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987).
When considering a motion for summary judgment under FOIA, the court must conduct a de novo review of the record. See 5 U.S.C. § 552(a)(4)(B). The court may grant summary judgment based on information provided in an agency’s affidavits or declarations when they are “relatively detailed and non-conclusory,” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation omitted), and “not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are “accorded a presumption of good faith, which cannot
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be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard, 926 F.2d at 1200 (citation and internal quotation marks omitted).
ANALYSIS FOIA requires government agencies to release records upon request in order 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., 437 U.S. 214, 242 (1978). The statute provides that: “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person,” 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions. See § 552(b); FBI v. Abramson, 456 U.S. 615, 630–31 (1982). This framework “represents a balance struck by Congress between the public’s right to know and the government’s legitimate interest in keeping certain information confidential.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003), citing John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). When an agency withholds documents or parts of documents, it must explain what it is withholding and specify the statutory exemptions that apply. See Vaughn v. Rosen, 484 F.2d 820, 825–28 (D.C. Cir. 1973). In this case, defendant maintains that it “appropriately searched for and provided records responsive to the request at issue, subject to the withholding of certain information pursuant to” FOIA Exemptions 5 and 6. Def.’s Mot. at 3. Plaintiff is not challenging the adequacy of defendant’s search or its application of FOIA Exemption 6. Pl.’s Cross-Mem. at 4 n.1, 8 n.5. Thus, there is no dispute of fact as to those issues, and the Court need not address them. See Shapiro v. U.S. Dep’t of Justice, 239 F. Supp. 3d 100, 105–06 n.1 (D.D.C. 2017), citing Winston
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& Strawn, LLP v. McLean, 843 F.3d 503, 505 (D.C. Cir. 2016). The Court will address the remaining issues – the validity of the assertion of FOIA Exemption 5 and the segregability requirement – below.
I. FOIA Exemption 5 Exemption 5 permits agencies to withhold “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); Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001). A document may be properly withheld under Exemption 5 only if (1) its source is a government agency, and (2) it falls “within the ambit of a privilege against discovery under judicial standards that would govern litigation against the agency that holds it.” Klamath, 532 U.S. at 8. FOIA “places the burden on the agency to sustain the lawfulness of specific withholdings in litigation.” Nat. Res. Def. Council, Inc. v. Nuclear Regulatory Comm’n, 216 F.3d 1180, 1190 (D.C. Cir. 2000).
The exemption encompasses “protections traditionally afforded [to] certain documents pursuant to evidentiary privileges in the civil discovery context[,]” including the executive “deliberative process” privilege. Taxation with Representation Fund v. IRS, 646 F.2d 666, 676 (D.C. Cir. 1981). Defendant has withheld the records at issue in this case claiming that the deliberative process privilege applies to them.
“The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery,” and its purpose “is to enhance ‘the quality of agency decisions’ by protecting open and frank discussion among those who make them within the Government.” Klamath, 532 U.S. at 8–9 (citations omitted), quoting NLRB v. Sears, Roebuck & Co. (“Sears”), 421 U.S. 132, 151 (1975). To
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accomplish that goal, “[t]he deliberative process privilege protects agency documents that are both predecisional and deliberative.” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir. 2006), citing Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). A document is predecisional if “it was generated before the adoption of an agency policy,” and deliberative if “it reflects the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866. “[E]ven if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.” Id.
Defendant withheld 161 documents in full pursuant to Exemption 5. Plaintiff disputes defendant’s invocation of Exemption 5 as it relates to five documents. Compare Pl.’s Mem. at 4 with Joint Status Report [Dkt. # 38]; Pl.’s Reply in Supp. of Pl.’s Cross-Mot. [Dkt. # 41]. Those documents are:
1. OMB183FY18176_000000702, comprising one page dated 6/14/2017, entitled “MENA Final Report Outline.docx”
2. OMB183FY18176_000000752, comprising five pages dated 11/3/2017, entitled “Revised Draft FRN on Race Standard 20171103_np.docx”
3. OMB183FY18176_000000321, comprising thirty-six pages dated 3/6/2018, entitled “Scenario 1 – OMB Decision Webinar – OMB Does NOT Make revisions – 110717.pptx”
4. OMB183FY8176_000000764, comprising twenty-five pages dated 11/1/2017, entitled “Scenario 2 – OMB Decision Webinar – OMB Does Makes [sic] revision.pptx”
5. OMB183FY18176_0000003026, comprising seventeen pages, dated 11/16/2017, entitled “Proposed FRN and Revised Standard 20170823.docx”
The Vaughn Index provides that the 161 documents were withheld in full because they were “draft documents in the process of revision that do not reflect agency decisions but are part
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of a decisionmaking process regarding the Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity,” and that the documents reflected “deliberations internal to the Executive Branch regarding a then-pending decision concerning the Standards . . . that was under consideration among staff of OMB at the time of the discussion.” See generally Vaughn Index, Appx. A to Walsh Decl. [Dkt. # 32-2]. Some of the documents consisted “entirely of meeting agendas and points of discussion to be used during IWG’s meeting.” Id.
For the five documents at issue, the Vaughn index repeats the same reason for withholding each of them:
FOIA Exemption b(5) - Internal Deliberative Drafts. Withheld draft documents in the process of revision that do not reflect final agency decisions but are part of a decisionmaking process regarding the Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity. Disclosing material withheld or redacted due to the deliberative process privilege would inhibit the frank and candid expression of views and the sharing of information that are essential for OMB to carry out its responsibilities, and would greatly impair the free exchange of information, ideas and analysis within OMB, and between OMB and other agencies in the Executive Branch. Revised Vaughn Index, Appx. A to Suppl. Walsh Decl. [Dkt. # 39-2]. The declaration submitted by the agency supplies additional detail. The declarant states that the 161 documents consisted of “drafts of IWG meeting materials from March 2017,” Walsh Decl. ¶ 17; “[n]on-final drafts of a presentation deck regarding the IWG’s work later revised before being presented to a public audience at [a] March 2017 conference,” id.; “deliberative discussions of the drafts in accompanying email records,” id. ¶ 18; “draft materials to be discussed during the [June 29, 2017] meeting,” id.; “draft materials and deliberative comments . . . circulated before and after the IWG’s July 10, 2017 meeting,” id.; and “[t]he draft report, annexes, and other accompanying material” id. ¶ 20. The declarant avers that all the withheld records “were created
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as part of a decision-making process conducted among staff in OMB in consultation with other Executive Branch agencies[.]” Id. ¶ 22.
In connection with the five documents at issue, the agency’s declarant stated that the first document was one of the “early drafts and outlines of IWG’s recommendations” that OMB staff circulated within the agency in June of 2017. Walsh Decl. ¶ 18. The second and the fifth documents were “drafts of a Federal Register Notice that would have been intended to represent OMB’s final decision regarding the recommendations of the IWG.” Id. ¶ 21. OMB did not publish a federal register notice, and the declarant averred that “OMB has made no final decision regarding the IWG’s recommendations.” Id. Finally, the fourth document was withheld because it was a draft that was “not finalized or relied on by OMB” related to “materials for a planned ‘webinar’ event regarding OMB’s potential decision regarding IWG’s recommendations.” Id.
Based on the Court’s in-camera review, as well as the information provided in the government’s affidavits, the Court finds that the five documents at issue are both predecisional and deliberative, and therefore fall within FOIA Exemption 5.
The first document is a draft outline for IWG’s final report to OMB regarding its findings. The document includes comments and questions about proposals to be included. This record is predecisional because it precedes and considers the content of the formal submission of findings to OMB, and it is deliberative. See Coastal States, 617 F.2d at 866 (“The exemption thus covers recommendations, draft documents, proposals, suggestions, and other subjective documents.”).
The second and fifth documents are internal drafts of a federal register notice that was never published. They include comments and blank spaces where information is to be filled in, and thus the documents are part of the “give-and-take of the deliberative process by which the decision itself is made.” Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975).
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The third and fourth documents are draft presentations outlining potential recommendations and describing what the implementation of each would entail. These presentations reviewing alternative courses of action are also both predecisional and deliberative.
Because OMB has never publicly released a decision on whether to change the standards, the agency took the position that the “decision-making process was never concluded, [and] all inter- and intra-agency deliberations regarding these matters during the time of the search qualify for the deliberative process privilege.” Walsh Decl. ¶ 15. Plaintiff contends that public release is not the defining feature of a “decision;” it submits that OMB made a decision when it elected not to revise its race standards, and that if the documents reflect that decision to maintain the status quo, they have lost their predecisional status. Pl.’s Cross-Mem. at 8–13.
While the decision not to take a particular action can constitute a final decision, SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1204 (D.C. Cir. 1991), defendant’s declarant avers that no final agency action has been taken, and plaintiff points to no evidence to the contrary. Plaintiff argues that a final decision must have been made because the Census Bureau issued a statement announcing that it would not include the “Middle Eastern North African” category on the 2020 Census. Pl.’s Cross-Mem. at 9–10. But the fact that the Census Bureau did not include the category does not mean that OMB came to an end of its decision-making process on what it would recommend.
Furthermore, just because an agency has not made a decision does not strip records of their predecisional status. As the D.C. Circuit has observed:
There may be no final agency document because a draft died on the vine. But the draft is still a draft and thus still pre-decisional and deliberative. . . . [T]o require release of drafts that never result in final agency action would discourage innovative and candid internal proposals by agency officials and thereby contravene the purposes of the privilege.
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Nat’l Sec. Archive v. CIA, 752 F.3d 460, 463 (D.C. Cir. 2014); see, e.g., Heartland All. For Human Needs & Human Rights v. U.S. Dep’t of Homeland Sec., 291 F. Supp. 3d 69, 78–79 (D.D.C. 2018) (“A document may be predecisional even if a final decision is never reached.”).
And, even if the agency had made an internal decision to maintain the status quo, the documents at issue would not lose their predecisional status because plaintiff has not shown that they have been “adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.”1 Coastal States Gas Corp., 617 F.2d at 866; Sears, 421 U.S. at 161 (“[I]f an agency chooses expressly to adopt or incorporate by reference an intraagency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion” that memorandum may not be withheld under Exemption 5). Plaintiff does not point to any public statements that OMB has made referencing, adopting, or incorporating the records or the subject matter at issue, nor has plaintiff provided the Court with any evidence that the records were informally adopted as the agency’s position. Plaintiff references a statement made by Karen Battle, chief of the Census Bureau’s Population Division, on January 26, 2018, where she explained that additional research and testing were necessary before the Census Bureau could proceed to implement a separate Middle Eastern or North African category. Pl.’s Cross-Mem. at 13. Plaintiff argues that “[t]o the extent that Ms. Battle’s explanation about the need for more research, and indeed the entire underlying decision to maintain the status quo, is evidenced in the withheld documents, it has been adopted as the agency’s policy.” Id. But, this statement was made by a Census Bureau official, not an OMB official. And, in any event, the statement
1 Courts in this district have held that the plaintiff carries the burden to show that the agency has formally or informally adopted a record as policy. See, e.g., Heffernan v. Azar, 317 F. Supp. 3d 94, 122 (D.D.C. 2018), citing Sec. Fin. Life Ins. Co. v. U.S. Dep’t of Treasury, No. 03-102, 2005 WL 839543, at *7 (D.D.C. Apr. 12, 2005).
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demonstrates the ongoing nature of the inquiry – Ms. Battle states that the agency had not tested the category as an ethnicity separate from race, and that research still needs to be completed before the government makes its final decision. See U.S. Census Bureau, 1/26/18: 2020 Census Quarterly Program Management Review (PMR), Youtube (Jan. 26, 2018), https://www.youtube.com/watch?v= 4He025kOzJo&feature=youtu.be&t=24m49s.
The records are draft documents that lay out various recommendations and proposals, and disclosure of these documents “would ‘discourage candid discussion within the agency.’” Access Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991), quoting Dudman Commc’ns Corp. v. U.S. Dep’t of Air Force, 815 F.2d 1565, 1567–68 (D.C. Cir. 1987). Thus, defendant properly applied Exemption 5 to the documents and defendant’s motion for summary judgment will be granted.
II. Segregability The Court must make a segregability determination, even if not raised by the plaintiff.
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007). While agencies must provide a detailed justification for withholdings, the Court will give a presumption of compliance to the agency in segregating material, see Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977), but the plaintiff may overcome this by presenting evidence to the contrary. Sussman, 494 F.3d at 1117. The government explained that it conducted a “documentby-document review of all records [it] collected” to assess whether any information could be disclosed. Walsh Decl. ¶ 25. Plaintiff has not provided any evidence to the contrary. Thus, based on the government’s affidavit and its in-camera review of the records, the Court finds that there was not any “factual or otherwise nonexempt information” that could be segregated and disclosed. Id.
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CONCLUSION For the foregoing reasons, the Court will grant defendant’s motion for summary judgment, and it will deny plaintiff’s cross-motion for summary judgment. A separate order will issue.

DATE: August 13, 2020

AMY BERMAN JACKSON United States District Judge

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