United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2013 Decided May 20, 2014 

No. 12-5201 

NATIONAL SECURITY ARCHIVE, 

APPELLANT

v. 

CENTRAL INTELLIGENCE AGENCY, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:11-cv-00724) 

Allon Kedem argued the cause for appellant. With him 

on the briefs was Clifford M. Sloan. 

Gregory G. Katsas, Kristen A. Lejnieks, and Tiffany D. 

Lipscomb-Jackson were on the brief for amicus curiae The 

National Coalition for History in support of appellant. 

Mitchell P. Zeff, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant 

U.S. Attorney. 

Before: ROGERS and KAVANAUGH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 
2 

Opinion for the Court filed by Circuit Judge 

KAVANAUGH, with whom Senior Circuit Judge WILLIAMS

joins. 

Dissenting opinion filed by Circuit Judge ROGERS. 

KAVANAUGH, Circuit Judge: In the spring of 1961, some 

1,400 Cuban exiles landed on the banks of the Bahía de 

Cochinos, the Bay of Pigs. They were supported by the 

Central Intelligence Agency and U.S. military. Their 

objective was to conquer the beach, nullify Fidel Castro’s air 

superiority with B-26 bombers and U.S. air support, and 

hunker down until the inevitable democratic revolution. But 

the revolution never came. Nor did sufficient supplies or air 

support. Instead, American pilots were shot down, and most 

of the exiles were captured and imprisoned. 

The now-infamous operation has been the subject of 

much debate and analysis. Within that genre, one account of 

the Bay of Pigs invasion is unique because it was written in 

the Central Intelligence Agency. Beginning in 1973, CIA 

staff historian Dr. Jack B. Pfeiffer drafted what became a fivevolume opus, starting with the CIA’s plans for the air 

operation and concluding with Dr. Pfeiffer’s assessment of 

the operation. 

Dr. Pfeiffer’s drafts of Volumes I through III ultimately 

were revised and released to the public by the CIA. The CIA 

also publicly released Dr. Pfeiffer’s draft of Volume IV. But 

the CIA has not released the draft of Volume V. 

In 2005, a non-profit research institute known as the 

National Security Archive submitted a request to the CIA 

under the Freedom of Information Act seeking, as relevant 

here, Dr. Pfeiffer’s draft of Volume V. (To avoid confusion, 

we will refer to the non-profit National Security Archive as 
3 

the “FOIA requester.”) The CIA claims that the draft of 

Volume V is exempt from disclosure under Exemption 5 of 

FOIA. The District Court agreed and granted summary 

judgment to the CIA. Our review of the District Court’s 

decision is de novo, and we affirm. 

* * * 

Exemption 5 of the Freedom of Information Act protects 

“inter-agency or intra-agency memorandums or letters which 

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). 

Exemption 5 encompasses the privileges that the Government 

could assert in civil litigation against a private litigant, such as 

the attorney-client privilege, the attorney work product 

privilege, the presidential communications privilege, the state 

secrets privilege, and the deliberative process privilege. See 

Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 

312, 321 (D.C. Cir. 2006). 

The CIA here invokes the deliberative process privilege. 

A form of executive privilege, the deliberative process 

privilege covers deliberative, pre-decisional communications 

within the Executive Branch. One of the rationales for the 

privilege is to encourage the candid and frank exchange of 

ideas in the agency’s decisionmaking process. “Human 

experience teaches that those who expect public 

dissemination of their remarks may well temper candor with a 

concern for appearances and for their own interests to the 

detriment of the decisionmaking process.” United States v. 

Nixon, 418 U.S. 683, 705 (1974). This is a concern as old as 

the Republic. Indeed, at the Constitutional Convention itself, 

the delegates agreed at the outset that none of the 

deliberations would be shared with outsiders, and the records 

were kept secret for more than 30 years. See Nixon v. 
4 

Administrator of General Services, 433 U.S. 425, 447 n.11 

(1977). 

The modern application of the deliberative process 

privilege rests on the same understanding that motivated the 

Framers in Philadelphia: If agencies were “to operate in a 

fishbowl, the frank exchange of ideas and opinions would 

cease and the quality of administrative decisions would 

consequently suffer.” Dudman Communications Corp. v. 

Department of the Air Force, 815 F.2d 1565, 1567 (D.C. Cir. 

1987) (internal quotation marks and citation omitted). In 

other words, agency officials “should be judged by what they 

decided, not for matters they considered before making up 

their minds.” Russell v. Department of the Air Force, 682 

F.2d 1045, 1048 (D.C. Cir. 1982) (quotation omitted). 

The deliberative process privilege covers 

communications that are pre-decisional and deliberative. See 

Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 

2006). To be pre-decisional, the communication (not 

surprisingly) must have occurred before any final agency 

decision on the relevant matter. See id. As this Court has 

previously noted, the term “deliberative” does not add a great 

deal of substance to the term “pre-decisional.” See Access 

Reports v. Department of Justice, 926 F.2d 1192, 1195 (D.C. 

Cir. 1991). The term “deliberative” in this context means, in 

essence, that the communication is intended to facilitate or 

assist development of the agency’s final position on the 

relevant issue. See Russell, 682 F.2d at 1048. 

 In delineating the scope of the deliberative process 

privilege, we have held that an agency’s official history is a 

final agency decision. An agency history constitutes the 

agency’s “official statement” concerning the agency’s prior 

actions, and it helps educate future agency decisionmakers. 
5 

Id. (Air Force history of the use of herbicide in Vietnam); see 

Dudman Communications, 815 F.2d at 1566 (Air Force 

history of involvement in South Vietnam). 

In turn, we have held that a draft of an agency’s official 

history is pre-decisional and deliberative, and thus protected 

under the deliberative process privilege. See Dudman 

Communications, 815 F.2d at 1568-69; Russell, 682 F.2d at 

1048-49. Those precedents pose a substantial hurdle to the 

FOIA requester’s claim in this case. 

To overcome those precedents and obtain release of Dr. 

Pfeiffer’s draft of Volume V, the FOIA requester asserts a 

string of arguments. None is persuasive. 

First, the FOIA requester points out that there was no 

final CIA history that arose out of or corresponded to Volume 

V. That is true, but we do not see the relevance of the point. 

There may be no final agency document because a draft died 

on the vine. But the draft is still a draft and thus still predecisional and deliberative. See NLRB v. Sears, Roebuck & 

Co., 421 U.S. 132, 151 n.18 (1975). A Presidential 

speechwriter may prepare a draft speech that the President 

never gives. A Justice Department aide may give the 

Attorney General a draft regulation that the Attorney General 

never issues. Those kinds of documents are no less drafts 

than the drafts that actually evolve into final Executive 

Branch actions. Moreover, the writer does not know at the 

time of writing whether the draft will evolve into a final 

document. But the writer needs to know at the time of writing 

that the privilege will apply and that the draft will remain 

confidential, in order for the writer to feel free to provide 

candid analysis. A privilege contingent on later events – such 

as whether the draft ultimately evolved into a final agency 

position – would be an uncertain privilege, and as the 
6 

Supreme Court has said, an uncertain privilege is “little better 

than no privilege at all.” Upjohn Co. v. United States, 449 

U.S. 383, 393 (1981); see also Swidler & Berlin v. United 

States, 524 U.S. 399, 408-09 (1998). In short, to 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. 

Second, the FOIA requester says that the CIA has 

released similar information regarding the Bay of Pigs 

operation, including the other volumes. However, an agency 

does not forfeit the benefit of a FOIA exemption simply 

because of its prior decision to voluntarily release other 

similar information. See Army Times Publishing Co. v. 

Department of the Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 

1993) (Air Force had not “‘waived’ its right to claim an 

exemption from disclosure simply because it has released 

information similar to that requested”). Indeed, penalizing 

agencies in that way would discourage them from voluntarily 

releasing information, which would thwart the broader 

objective of transparent and open government. 

Third, the FOIA requester claims that the CIA has 

identified no concrete harm that would result from release of 

the draft of Volume V. But as we have said before, 

“Congress enacted FOIA Exemption 5 . . . precisely because 

it determined that disclosure of material that is both 

predecisional and deliberative does harm an agency’s 

decisionmaking process.” McKinley v. Board of Governors of 

the Federal Reserve System, 647 F.3d 331, 339 (D.C. Cir. 

2011). The harm from release is, among other things, the 

harm to the candor of present and future agency 

decisionmaking. Courts may not “second-guess that 

congressional judgment on a case-by-case basis.” Id. 
7 

Fourth, the FOIA requester contends that the passage of 

time since Dr. Pfeiffer wrote his draft renders the deliberative 

process privilege inapplicable here. According to the FOIA 

requester, the CIA’s interest in protecting any contentious or 

sensitive issues discussed in the draft of Volume V has 

diminished over time. But unlike some statutes, such as 

certain provisions of the Presidential Records Act, see 44 

U.S.C. § 2204(a), Exemption 5 of FOIA does not contain a 

time limit.1

 We must adhere to the text of FOIA and cannot 

judicially invent a new time limit for Exemption 5. See 

generally Milner v. Department of the Navy, 131 S. Ct. 1259 

(2011). 

Moreover, privileges that are intended to facilitate candid 

communication, such as the deliberative process privilege, 

generally do not have an expiration date. That makes sense 

because such a privilege otherwise would not fully serve its 

purposes. As we have noted, in order for a privilege to 

encourage frank and candid debate, the speaker or writer must 

have some strong assurance at the time of the communication 

that the communication will remain confidential. Premature 

release of material protected by the deliberative process 

privilege would have the effect of chilling current and future 

agency decisionmaking because agency officials – realizing 

that the privilege evaporates over time – would no longer 

have the assurance that their communications would remain 

protected. And without that assurance, they in turn would not 

feel as free to advance the frank and candid ideas and advice 

that help agencies make good decisions. See generally 

 1

 By its terms, moreover, the Presidential Records Act does not 

and could not “limit . . . any constitutionally-based privilege which 

may be available to an incumbent or former President.” 44 U.S.C. 

§ 2204(c)(2). So the time limit in that Act, as applied to those 

privileges, changes the procedure for asserting the privilege, not the 

scope or duration of the privilege.
8 

Swidler & Berlin, 524 U.S. at 407-08; Access Reports, 926 

F.2d at 1196. In addition, looking backward, premature 

release of privileged information would risk embarrassment 

of individuals who had put forth certain ideas on the 

understanding and assurance that their communications would 

remain confidential. To avoid such an unfair bait and switch, 

among other reasons, the Supreme Court has recognized that a 

privilege designed to encourage candid communications must 

be durable and lasting. See Swidler & Berlin, 524 U.S. at 

407-08 (involving attorney-client privilege). In short, we 

reject the FOIA requester’s argument that the deliberative 

process privilege applicable to Dr. Pfeiffer’s draft has 

somehow expired. 

Fifth, even if its arguments for the entire draft of Volume 

V are unavailing, the FOIA requester contends that some 

portions of the draft may contain factual material that is not 

protected by the deliberative process privilege and is 

“reasonably segregable.” 5 U.S.C. § 552(b). The District 

Court concluded that the entirety of the draft is protected by 

Exemption 5. The District Court’s decision adheres to our 

precedents in this context. Our cases have made clear that a 

draft agency history may not be dissected by the courts in the 

manner suggested by the FOIA requester here. See Dudman 

Communications, 815 F.2d at 1568-69; Russell, 682 F.2d at 

1048-49. In producing a draft agency history, the writer 

necessarily must “cull the relevant documents, extract 

pertinent facts, organize them to suit a specific purpose,” and 

“identify the significant issues.” Mapother v. Department of 

Justice, 3 F.3d 1533, 1538 (D.C. Cir. 1993). In doing so, “the 

selection of the facts thought to be relevant” is part of the 

deliberative process; it necessarily involves “policy-oriented 

judgment.” Id. at 1539 (internal quotation marks omitted); 

see also Horowitz v. Peace Corps, 428 F.3d 271, 276-77 

(D.C. Cir. 2005); Wolfe v. Department of Health & Human 
9 

Services, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc); Lead 

Industries Association, Inc. v. OSHA, 610 F.2d 70, 85 (2d Cir. 

1979). 

Applying that reasoning in Russell and Dudman, we held 

that draft versions of official Air Force histories were exempt 

from disclosure. See Dudman Communications, 815 F.2d at 

1568-69; Russell, 682 F.2d at 1048-49. We must reach the 

same result here when assessing Dr. Pfeiffer’s draft history. 

In the narrow confines of this case, which involves a draft 

agency history, we agree with the District Court that the draft 

of Volume V is exempt in its entirety under Exemption 5. To 

be clear, as we emphasized in Dudman, if a person “requests 

particular factual material – e.g., material relating to an 

investigation of a war crime – an agency cannot withhold the 

material merely by stating that it is in a draft 

document. . . . The exemption plainly applies in this case 

because [the FOIA requester] asked not for particular factual 

material, but for the draft in which [the FOIA requester] 

thought the material could be found.” 815 F.2d at 1569. 

* * * 

We affirm the judgment of the District Court. 

So ordered. 
ROGERS, Circuit Judge, dissenting. In 2005, the National

Security Archive requested disclosure of “[t]he fourth and fifth

volumes of the Official History of the Bay of Pigs Operation”

pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.

§ 552. Because the draft of Volume IV (entitled “The Taylor

Committee Investigation of the Bay of Pigs”) was publicly

released in response to the FOIA request, the request at issue is

for release of a draft of Volume V (entitled “CIA’s Internal

Investigation of the Bay of Pigs Operation”) that was prepared

with the other four volumes between 1973 and 1984 by a staff

historian at the Central Intelligence Agency. Volumes I through

IV have been publicly released; release of the fifth volume has

been withheld by the agency pursuant to FOIA Exemptions 1, 3

and 5. The district court upheld its non-release based on

Exemption 5. Because the agency’s current declarations fail to

meet its burden to show the draft is fully protected from

disclosure under Exemption 5, I would remand the case to the

district court for further consideration.

Congress enacted FOIA Exemption 5, incorporating the

deliberative process privilege, to protect against the harm to an

agency’s decisionmaking process that results from the disclosure

of material that is both predecisional and deliberative. See

McKinley v. Bd. of Governors of Fed. Reserve, 647 F.3d 331,

339 (D.C. Cir. 2011); accord Wolfe v. Dep’t of Health &Human

Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc). The

exemption is designed to protect “materials [that] can reasonably

be said to embody an agency’s policy-informed or -informing

judgmental process.” Petroleum Info. Corp. v. U.S. Dep’t of

Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992). Consist ent

with “the [FOIA’s] goal of broad disclosure,” the Supreme

Court has “insisted that the exemptions be given a narrow

compass.” Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1265

(2011) (citations and internal quotation marks omitted). More

particularly, the Supreme Court has instructed that the

deliberative process privilege under Exemption 5 “has finite
2

limits,” EPA v. Mink, 410 U.S. 73, 87 (1973) and “requires

different treatment for materials reflecting deliberative or

policy-making processes on the one hand, and purely factual,

investigative matters on the other,” id. at 89 (footnote omitted). 

This court also has emphasized that the privilege “serves

to protect the deliberative process itself, not merely documents

containing deliberative material.” Mapother v. Dep’t of

Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). “A document is

‘predecisional’ if it precedes, in temporal sequence, the

‘decision’ to which it relates,” and “[a]ccordingly . . . a court

must be able ‘to pinpoint an agency decision or policy to which

the document contributed.’” Senate of Puerto Rico v. U.S.

Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (quoting

Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1981)). Although

a document need not “contribute to a single, discrete decision,”

Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1196 (D.C.

Cir. 1991), an agency must “identify[] the decisionmaking

process to which [the document] contributed,” id. at 1197. The

court has thus treated certain draft agencyhistories as protected

from disclosure under Exemption 5, reasoning that the

“disclosure of editorial judgments” made during the agency’s

deliberative process “would stifle the creative thinking and

candid exchange of ideas necessary to produce good historical

work.” Dudman Commc’ns Corp. v. Dep’t of Air Force, 815

F.2d 1565, 1569 (D.C. Cir. 1987); see Russell v. Dep’t of Air

Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). In each case, the

court shielded draft histories from disclosure because the

agency’s deliberative process would be revealed by means of

“‘a simple comparison between the pages sought and the final,

published document,” which “would reveal what material

supplied bysubordinates senior officials judged appropriate for

the history and” what they did not. Mapother, 3 F.3d at 1538

(quoting Russell, 682 F.2d at 1049, and noting that Dudman
3

Commc’ns, 815 F.2d at 1569, reaffirmed Russell’s rationale). 

Here, the agency identifies the “final history of the Bay of

Pigs Operation” as the relevant agency decision, see

Appellee’s Br. 10, and defends withholding the draft of

Volume V on the ground that release “could be expected to . . .

discourage open and frank deliberations among the History

Staff” and “lead to public confusion,” Decl. of David S.

Robarge ¶ 9 (Nov. 17, 2011); see Jordan v. U.S. Dep’t of

Justice, 591 F.2d 753, 772–73 (D.C. Cir. 1978) (en banc). The

Chief Historian states, categorically, that release of “any . . .

draft history at any stage before its completion” as an official

agency publication “could be expected to . . . discourage open

and frank deliberations.” Robarge Decl. ¶ 9 (emphasis added). 

The Chief Historian views “[t]he back-and-forth peer review

process” as “critical to ensuring that any final history is both

objective and accurate.” Id. ¶ 10. According to the Chief

Historian, the “histories provide . . . intelligence officers,

managers and decision-makers with . . . shared institutional

memory regarding historical events for use in current decisionmaking.” Id. ¶ 4. 

“[T]he key question in Exemption 5 cases” is “whether the

disclosure of materials would expose an agency’s

decisionmaking process in such a way as to discourage candid

discussion within the agency and thereby undermine the

agency’s ability to perform its functions.” Dudman Commc’ns,

815 F.2d at 1568. All except the draft of Volume V of the

History have been publicly released. In response to a related

FOIA request, the agency released Volumes I, II, and IV with

“minimal redactions” under FOIA Exemptions 1 and 3, in 2011. 

See Decl. of Martha Lutz, Information Review Officer ¶ 14

(Sept. 26, 2011). Volume III was released in 1998 pursuant to

the Kennedy Assassination Records Act. Id. ¶ 16. 

Significantly as well, the agency released Volume IV in 1987 as
4

a “draft document,” id. ¶ 17, “before its completion” as an

official agency document, Robarge Decl. ¶ 9, in response to the

staff historian’s own FOIA request and re-released the draft

with fewer redactions in response to the current FOIA request,

see Lutz Decl. ¶ 17.

Of course, an agency does not “‘waive[]’ its right to claim

an exemption from disclosure simply because it has released

information similar to that requested.” Army Times Publ’g Co.

v. Dep’t of Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993). 

But at this point the agency’s FOIA-related release of the draft

of Volume IV appears from the record to be “fundamentally

inconsistent with [the agency’s categorical] claim that release

of [the draft of Volume V] would threaten the decisionmaking

process of the agency.” Id. at 1070. Even assuming the draft

of Volume V is predecisional, there is neither a final version of

Volume V nor anything in the record to suggest that comparing

the draft with the other four volumes would implicate the

rationale of Dudman Communications and Russell. The draft of

Volume V, moreover, was rejected at the first stage of the

agency’s review process, see Lutz Decl. ¶ 20, and was not part

of the agency “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). 

Yet today the majority reads Dudman Communications and

Russell as calling for a per se rule of Exemption 5 protection for

draft agency histories. See Op. at [5]. The court states that “a

draft of an agency’s official history is pre-decisional and

deliberative, and thus protected under the deliberative process

privilege,” id.(citing Dudman Commc’ns, 815 F.2d at 1568–69,

and Russell, 682 F.2d at 1048), and that although a draft history

may “die[] on the vine . . . . the draft is still a draft and thus still

pre-decisional and deliberative,” id. Designation of a document

as a draft, however, “does not end the inquiry,”Arthur Andersen
5

& Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982) (citing

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980)), much less demonstrate that an agency has

met its burden to justify its withholding under Exemption 5 by

identifying the role of the individual document in the

deliberative process, see, e.g., Access Reports, 926 F.2d at 1196;

Coastal States, 617 F.2d at 868. It is one thing to conclude that

disclosure of a draft could “stifle . . . creative thinking and

candid exchange of ideas,” Dudman Communications, 815 F.2d

at 1569, where it is possible to identify editorial judgments by

comparing the draft and the final version, and quite another to

conclude stifling could occur where there is no final version and

the agency has identified the requested document as reflecting

no more than the individual staff historian’s view. Troubling as

well is the fact that the agency has criticized the staff historian’s

work on the draft of Volume V in a declaration filed in the

public record of the instant case — stating that in 1981 and

1984 the Chief Historian thought the draft “had serious

deficiencies as a historical study” and “offers a polemic of

recriminations against CIA officers who later criticized the

operation, and against those U.S. officials who [the staff

historian] contends were responsible for its failure,” Decl. of J.

Kenneth McDonald, CIA Chief Historian ¶¶ 6, 13 (Nov. 4,

1987) — while denying any opportunity for the work to speak

for itself (even in redacted form); these circumstances, no less

than disclosure, could cause current and future staff historians

to curtail the candor and creative flair that the agency values as

part of its History process.

Neither the majority opinion nor the agency’s current

declarations explain why this particular draft document is

deliberative, i.e., why release of the draft of Volume V “would

expose an agency’s decisionmaking process in such a way as to

discourage candid discussion within the agency and thereby

undermine the agency’s ability to perform its functions.” 
6

Dudman Commc’ns, 815 F.2d at 1568. The agency claims that

the draft of Volume V is “reflective of the iterative review

process of the CIA’s History Staff” and “reflects the give and

take of the consultative process.” Robarge Decl. ¶ 16. But the

agency also avers that the draft of Volume V “never proceeded

beyond the first stage of the CIA review process,” Lutz Decl.

¶ 20, “was never circulated within the [a]gency,” Robarge Decl.

¶ 15, “does not incorporate information and perspectives that

would arise from the internal review process,” id. ¶ 14

(emphasis added), and “represents the view of merely one staff

historian,” id. ¶ 12. From the current record we know the Chief

Historian in 1987 addressed potential harm from release of the

draft of Volume V. See McDonald Decl. ¶¶ 13–14. But the

agency’s subsequent declarations do not incorporate that

analysis, adopting instead only the description of the History

development process, see Lutz Decl. ¶ 22, and the explanation

of why the draft of Volume V was rejected, see Robarge Decl.

¶ 13. Notably, the 1987 declaration assumed that the draft of

Volume V “will eventually go through the full revision, editing

and review process” and “later drafts or the final form of this

history may be compared to [the staff historian]’s version to

determine what changes in evidence, argument and

interpretation were made in completing this work.” McDonald

Decl. ¶ 14. In 2011, however, the Chief Historian advised that

“[a]lthough Dr. McDonald hoped that Volume V could be

edited to a final version, these efforts were unsuccessful.” 

Robarge Decl. ¶ 15. And, of course, the 1987 declaration

preceded the agency’s subsequent decisions to release other

volumes of the “unfinished” History, Robarge Decl. ¶ 12, 

including a draft of Volume IV. As noted, the 1987 explanation

for withholding the draft of Volume V appears to apply equally

to the draft of Volume IV, which the agency has twice publicly

released, and no agency declaration has explained why the two

drafts should be treated differently for purposes of Exemption

5. The rationale of Dudman Communications and Russell also
7

affords no dispositive answer in the absence of a final version

of Volume V with which to compare the draft now sought. 

Given the post-1987 public releases of the other volumes of the

“unfinished” History, and because “disclosure, not secrecy, is

the dominant objective of the Act,” Dep’t of Air Force v. Rose,

425 U.S. 352, 361 (1976), the agency’s present reliance on a

categorical approach for withholding the draft of Volume V

under Exemption 5 does not satisfy the agency’s burden under

the FOIA.

To the extent the majority’s opinion suggests that agency

draft histories are also excused from the statutory requirement

that any “reasonably segregable,” non-exempt material be

released to the requester, see 5 U.S.C. § 552(b), Dudman

Communications indicated otherwise. There the court rejected

the argument that withholding release of agency histories under

Exemption 5 “will allow agencies to hide all manner of factual

information from public view,” stating:

Our holding . . . can have no such effect. If a person

requests particular factual material — e.g., material

relating to an investigation of a war crime — an

agency cannot withhold the material merely by stating

that it is in a draft document. In such a case, the

agency will usually be able to excise the material from

the draft document and disguise the material’s source,

and thus the agency will usually be able to release the

material without disclosing any deliberative process. 

When the agency can take such steps, it may not

withhold the information under Exemption 5.

Dudman Commc’ns, 815 F.2d at 1569; see Vaughn, 523 F.2d at

1143–44; Arthur Andersen, 679 F.2d at 257–58. The court has

“shelter[ed] factual summaries that were written to assist the

making of a discretionary decision,” Mapother, 3 F.3d at 1539
8

(citing Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63

(D.C. Cir. 1974)), and it is conceivable that a draft history could

include factual summaries that reflect deliberative judgments. 

Notwithstanding his criticisms of the staff historian’s work on

a “preliminary draft” of Volume V, the Chief Historian stated

in 1987 that the “research material and drafts will doubtless be

of value” to a staff historian assigned to complete the History. 

McDonald Decl. ¶ 6. This is not a sufficient response here.

Exemption 5 reaches factual material only if it is

“assembled through an exercise of judgment” and does not

extend, for example, to a mere “inventory, presented in

chronological order,” Mapother, 3 F.3d at 1539. Before

granting summary judgment the district court did not review the

draft of Volume V in camera — review that the Supreme Court

has observed is “often . . . required . . . in order to determine

which [documents] should be turned over or withheld,” Mink,

410 U.S. at 88 — and the agency has provided this court no

basis to conclude that all factual material in the draft history

reflects deliberative judgments. The declaration of the agency’s

Information Review Officer sheds no light on segregability,

stating only that the draft of Volume V “contains no reasonably

segregable information since the entire document is a draft.” 

Lutz Decl. ¶ 25. Such a “vague and conclusory” statement is

“inadequate” to support summary judgment. PHE, Inc. v. Dep’t

of Justice, 983 F.2d 248, 252–53 (D.C. Cir. 1993). “[A] blanket

claim of privilege under Exemption 5,” Army Times Publ’g, 998

F.2d at 1071, appears, at this point, to be unwarranted in light

of the release of a draft of Volume IV and the agency’s

acknowledgments about the draft of Volume V, namely that it

contains only “a small amount of classified information,” Lutz

Decl. ¶ 14, and that it addresses a 1961 investigation by the
9

agency’s Inspector General whose report the agency released in

1997.1

Neither Dudman Communications nor Russell cited the

segregability provision in 5 U.S.C. § 552(b). Since those cases

were decided this court has held that, regardless of whether a

request for segregability is made, “‘a district court clearly errs

when it approves the government’s withholding of information

under the FOIA without making an express finding on

segregability,’” Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir.

2007) (quoting PHE, Inc., 983 F.2d at 252), and that “failure to

fulfill this responsibility requires a remand,” id. The district

court stated that “the entirety of Volume V is covered by

Exemption 5,” Nat’l Sec. Archive v. CIA, 859 F. Supp. 2d 65, 68

n.2 (D.D.C. 2012), but this statement was made in the context

of explaining why it was unnecessary to address the agency’s

invocation of FOIA Exemptions 1 and 3, not whether any

portions of the draft of Volume V were reasonably segregable

and non-exempt.

Accordingly, I would reverse the grant of summary

judgment and remand the case to the district court for further

consideration. See Citizens for Responsibility & Ethics in

Wash. v. U.S. Dep’t of Justice, No. 12-5223, slip op. at 18 (D.C.

Cir. Apr. 1, 2014). The agency may be able to demonstrate its

withholding of the entirety of the draft of Volume V is justified

under Exemption 5, but its current declarations do not meet its

“burden of proving,” the categorical applicability of the

deliberative process privilege, Ancient Coin Collectors Guild v.

See Appellant’s Br. 13 n.5 (citing Inspector General’s 1

Survey of the Cuban Operation and Associated Documents (1961)

(indicating release through CIA Historical Review Program in 1997),

available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB341/

IGrpt1.pdf)
10

U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011); see

U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press,

489 U.S. 749, 755 (1989). Likewise, it is possible that

segregating and releasing non-exempt portions of the draft of

Volume V may be unwarranted, but the district court has yet to

make that requisite “express finding.” On remand, the district

court’s reevaluation of Exemption 5 should include

consideration of the effect of the passage of time; the agency is

“not arguing, and has never argued, that a court should never

consider the passage of time in determining whether a document

is protected by Exemption 5,” Appellee’s Br. 19, and it has

identified the draft of Volume V as “represent[ing] the view of

merely one staff historian,” Robarge Decl. ¶ 12, expressed thirty

years ago about events that occurred over fifty years ago. 

Thereafter, as necessary, the district court should address the

applicability of Exemptions 1 and 3 also invoked by the agency. 

I respectfully dissent.