# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2013 Decided May 20, 2014

No. 12-5201

N ATIONAL S ECURITY A RCHIVE , A PPELLANT

v.

C ENTRAL I NTELLIGENCE A GENCY , A PPELLEE

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: R OGERS and K AVANAUGH , Circuit Judges , and W ILLIAMS , Senior Circuit Judge

.2
Opinion for the Court filed by Circuit Judge K AVANAUGH , with whom Senior Circuit Judge W ILLIAMS joins.

Dissenting opinion filed by Circuit Judge R OGERS

.

K AVANAUGH , 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 beac h, nullify Fidel Castro’s air superiority with B-26 bomber s 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 pilo ts were shot down, and most of the exiles were captured and imprisoned.

The now-infamous operation ha s 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. Pfei ffer 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 Vo lumes I through III ultimately were revised and released to the public by the CIA. The CIA also publicly released Dr. Pfeiffe r’s draft of Volume IV. But the CIA has not released th e 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 Volu me V. (To avoid confusion, we will refer to the non-profit National Security Archive as3
the “FOIA requester.”) The CIA claims that the draft of Volume V is exempt from di sclosure under Exemption 5 of FOIA. The District Court agreed and granted summary judgment to the CIA. Our revi ew 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 ag ency.” 5 U.S.C. § 552(b)(5). Exemption 5 encompasses the privileges that the Government could assert in civil litigation ag ainst 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 deliber ative 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 C onstitutional Convention itself, the delegates agreed at th e 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 unde rstanding that motivated the Framers in Philadelphia: If ag encies were “to operate in a fishbowl, the frank exchange of ideas and opinions would cease and the quality of admi nistrative 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-de cisional and deliberative. See Judicial Watch, Inc. v. FDA , 449 F.3d 141, 151 (D.C. Cir. 2006). To be pre-decisiona l, 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 th e term “pre-decisional.” See Access Reports v. Department of Justice , 926 F.2d 1192, 1195 (D.C. Cir. 1991). The term “deliberativ e” in this context means, in essence, that the communication is intended to facilitate or assist development of the ag ency’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 us e 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 de liberative, 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. N one is persuasive.

First , the FOIA requester point s 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 diedon 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 Depa rtment 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 cont ingent on later events – such as whether the draft ultimately evolved into a final agency position – would be an uncerta in privilege, and as the6
Supreme Court has said, an uncerta in 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 resu lt in final agency action would discourage innovative and ca ndid 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 “‘waiv ed’ its right to claim an exemption from disclosure simply because it has released information similar to that re quested”). Indeed, penalizing agencies in that way would di scourage them from voluntarily releasing information, which would thwart the broader objective of transparent and open government.

Third , the FOIA requester cl aims that the CIA has identified no concrete harm th at 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 ma y 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 expi ration 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 thei r communications would remain protected. And without that assurance, they in turn would not feel as free to advance the fr ank 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 c onstitutionally-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 C ourt’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 re levant 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 necessa rily 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 & Human9

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 th is case, which involves a draft agency history, we agree with th e 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.R O G E R S , Cir cuit Judge
, dissenting. I n 2005, the National Security Arc hive reque sted disclosure of “[t] he fourth and fifth

v o l umes of the Offic ial History of the Ba y of Pigs Oper ati o n ” pursuant to the Fr eedom of I nformation Act (“F OI A”)
, 5 U.S.C. § 552. Be cause the draf

t of Volu m e I V (e ntitled “The Tay lor Commi ttee I nvest i g ation of the Ba y of Pigs”) was publicly rele ased in r esponse to the FOI A reque st, the reque st a t issue is for rele ase of a d ra ft o f Volume V (entitled “CI A’s I nterna l I nvestig ation of the Ba

y of Pigs Oper ation”) that was prepa red with the o t h er four volumes betwee n 1973 and 1984 by a staff historian at the Central I ntellige nce Ag ency

. Volumes I throug h I V have been publicly rele ased; release of t he fifth vo l u m e has been withheld by the ag ency pursuant to FOI A Ex emptions 1, 3 and 5. Th e d i s t ri ct court upheld its non-re lease based on Ex emption 5. Be cause the ag ency ’s curr ent decla rations fail to meet its burden to show th e d raft is fully protec ted from disclosure under Ex emption 5, I wo u l d re mand the case to the district court for

further consideration.

Congr ess enac ted FOI A Ex emption 5, i ncorpor ating the delibera tive proce ss pr ivilege , to protect a g ainst the harm to an

a g ency ’s decisionmaking proce ss that results from the dis c lo s u r e of materia l that is both prede cisional an d d elibera tive. See McKinley v. Bd. of Gove rnor s o f F ed. Reserv e , 647 F.3d 331, 339 (D.C. Cir. 2011); accord W olfe v. Dep’ t of

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

. The exemption is desig ned to protec t “ ma te r ials [t hat] can rea sonably be said to embod y an ag ency ’s policy -informe d or -informing judgme ntal proce ss.” Petroleum Info. Corp. v. U.S. Dep’ t of Interior , 976 F.2d 1429, 1435 ( D.C. Cir. 1992). C o n s i s t e n t with “the [FOI A’s] g oal of broad disclosu re,” the Supreme Court has “insisted that the exemptions be gi v en a narr ow compass.” Milner v. Dep’ t of Navy
, 131 S. C t

. 1259, 1265 (2011) (citations and internal quotation m ar ks omitted). More
p articularly
, the Supreme Court has instructed that t h e d el i bera tive proce ss privileg e under Ex emption 5 “has fini t e2

limit s,” EPA v. Mink
, 410 U.S. 73, 87 (1973) and “re quires differ ent trea tment for mater i al s ref lecting delibera

tive or policy -making proce sses o n t he one hand, and purely fac tual, investiga tive matters on the other,” id. at 89 (footnote omitted).

This court also has emphasized that the privileg e “ser ves to protec t the delibera tive proce ss itself, not mere ly documents containing d el i bera tive materia l.” Mapother v. Dep’ t of Justice
, 3 F.3d 1533, 1537 (D.C. C ir. 1993). “A docu ment is ‘pre decisional’ if it prec edes, in temporal sequenc e, the ‘dec ision’ to which it rela tes,” and “[a]ccordingl y

. . . a court must be able ‘to pinpoint an ag ency decision or policy to which
t h e document contributed.’” Senate of Puerto Rico v. U. S

. Dep’ t of J

ustice , 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 “contr ibute to a single
, discrete decision,” Acc ess Reports v. Dep’ t of Justice
, 926 F.2d 1192, 1196 (D.C. Cir. 1991), an ag ency must “identify [] the decisionmaking
proce ss to which [t he document] contributed,” id. at 1197. The
court has thus trea

ted cer tain draf t ag ency histories as protec ted fr o m disclosure under Ex emption 5, rea soning that t h e “disclosure of editorial judgments” made during the ag ency ’s delibera tive proce ss “would stifle the cre at i ve thinking and candid exchang e of ideas nece ssary to produce g ood historical work.” Dudman C ommc’ ns Corp. v. Dep’t of Air Force
, 815 F. 2 d 1565, 1569 (D.C. C ir. 1987); see Russell v. Dep’t of A i r Force
, 682 F.2d 1045, 1048 (D.C. Cir. 1982). I n eac h case , the
court shielded draf

t histories from di s clos ure beca use the
ag ency ’s delibera tive proce ss would be reve aled by mea ns of “‘a simple compar ison betwee n the pag es soug ht and the final, published document,” which “would reve al what materia l supplied by subordinates s e n ior officia ls judge d appropr iate for the history

and” w hat they did not. Mapother , 3 F.3d a t 1538 (quoting Russell
, 682 F.2d at 10 4 9
, and noting that Dudman3

Commc’ns
, 815 F.2d at 1569, rea ffi rm ed Russell ’s rationale).

Her e, the ag ency identifies the “fina l history of the Ba y of Pigs Oper at i o n” as the rele vant ag ency decision, see Appe l lee’ s Br

. 10, and defe nds withholding the draf t of Volume V on the g round that rele ase “could be expected to

. . . dis co urag e open and fra

nk delibera

tions among the History Staff” and “lea d to public confusion,” Dec l. of David S. Robarg e ¶ 9 (N o v

. 1 7
, 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, cate g orica lly
, that releas e of “ any

. . . draf t history at any stag e bef

o re its completion” as an official
ag ency publication “could be expected to

. . . discourag e open and fra nk delibera tions.” Robarg e Dec l. ¶ 9 (empha sis added)

. The Chief Historian views “[t] he back-and-f orth peer revie w proce ss” as “cr itical to ensuring that any final history is both objective and acc urate .” Id

. ¶ 1 0

. Acc ording to the Chief Historian, the “histories provide

. . . intelligenc e office rs,

mana gers and decision-make rs with

. . . share d instit utional
memory reg arding historical events for use in curr ent decisionmaking .” Id. ¶ 4.

“[T] he key question in Ex emption 5 case s” is “whe ther the d i s c l o s u r e o f m a t e r i al s wo u l d ex p o s e an age n cy ’s decisionmaking proce ss in such a way as t o discourag e candid discussion within the ag ency and there by underm ine the
ag ency ’s ability to perf

orm its functions.” Dudman Commc’ns
, 815 F.2d at 1568. All except the draft of Volume V of the Hi s t o ry h ave been publicly rele ased. I n response to a rela ted FOI A requ est , the ag ency rele ased Volumes I
, I I
, and I V with “minimal reda ctions” under FOI A Ex emptions 1 and 3, in 2011. See Dec l. of Martha L utz, I n fo rm at i on Review Offic er ¶ 14 (Sept. 26, 2011). Volume I I I was re lease d in 1998 pursuant t o the Kenne dy Assassination Re co rds Act. Id

. ¶ 16. Significa ntly as well, the ag ency rele ased Volume I V in 1987 as4

a “dra ft document,” i d

. ¶ 17, “bef ore its completion” as an officia l ag ency document, Robarg e Dec l. ¶ 9, in response to the staff historian’s own FOI A reque st and re- rele ased the draf t with fewe r re dactions in response to the curr ent FO I A re quest,

see L utz Decl. ¶ 17.

Of course , an ag ency does not “ ‘wa ive[] ’ its rig ht to claim

an exemption from disclosure simply beca use it has rele ase d information simil ar to that reque sted.” Army Times Publ’g Co.

v. Dep’ t of Air Force
, 998 F.2d 1067, 1068 (D.C. C i r. 1 993). But a t this point the ag ency ’s FO I A-re lated re lease of the dra ft of Volum e I V appea

rs from the rec ord to be “funda mentally inconsistent with [t he ag ency ’s cate g orica l] claim that rele ase of [the draft of

Volume V] would threa ten t he decisionmaking
p roce ss of t he age ncy .” Id

. at 1070. Even assuming t he d ra ft of Volume V is prede cisional, there is neither a final version of Volume V nor any

thing in the rec ord to sug g est that compar ing the draf t with t h e other four volumes would implicate the rationale of Dudman Communications and Russell

. The draf t of Volume V, moreove r, was reje cted at the first stag e of the
ag ency ’s re view proc ess, see L utz Decl. ¶ 20, and wa s not part of the ag ency “give- and-ta ke of the delibera tive proce ss by which the decision itself is made,” Vaughn v. Rosen
, 523 F.2d 1136, 1144 (D.C. Cir. 1975).

Yet today the majority rea ds Dudman Communications and Russell as calling for a per se rule of Ex emption 5 protec tion for draf t ag ency histories. See Op

. at [ 5]. The court states t hat “a draft of an ag ency ’s officia l history is pre- decisiona l an d delibera tive, and th u s p rotec ted under the delibera tive proce ss privileg e,” id. (citing Dudman Commc’ns
, 815 F.2d at 1568–69, and Russell
, 682 F.2d at 1048), and that althoug h a draf t history
may “die[] on the vine

. . . . the draf t is still a draf

t and thus still
pre- decisional and delibera tive,” id. Desig nation of a document

as a draf t, howeve r, “does not end the inquiry ,” Arthur Andersen5

& Co. v. IRS
, 679 F.2d 254, 257 (D.C. Cir. 19 8 2 ) (c i ting Coastal States Gas Corp. v. Dep’ t of Energy
, 617 F.2d 854, 866 (D.C. Cir. 19 8 0 )), much less demonstrate that an ag ency has
met its burden to justify

its withhol ding unde r Ex emption 5 by identif y i n g the role of the individual document in the delibera tive proce ss, see, e.g. , Acc ess Reports
, 926 F.2d at 1196; Coastal States
, 617 F.2d at 868. I t is one thing to conclude that disclosure o f a d raft could “stifle

. . . cre ative thinking and candid exchang e of ideas,” Dudman Communications
, 815 F.2d at 1569, wher e it is possible to identify editorial j udgm en t s b y compar ing the draf

t and the final versio n , an d quite another to conclude stifling could occur wher e there is no final version and the age ncy has i denti fi ed the requested document as reflec ting

no more than the individual staff historian’s view. Troubling as well is the fac t that the ag ency has criticized the staff historian’s work on the draf

t of Volume V in a d ec l ara tion filed in the public rec ord o f t h e i nstant case — stating that in 1981 and 1984 the Chie f Historian thought the draf t “had serious defi cienc ies as a historical study ” and “off ers a polemic of

rec riminations ag ainst CI A office rs who later criticized the
opera tion, and ag ainst those U.S. officia ls wh o [t he staff historian] contends wer e responsible for its failure ,” Dec l. of J

. Kenne th McDona ld, CI A Chief Historian ¶¶ 6
, 13 (Nov. 4, 1987) — wh i l e deny

ing any opportunity for the work to speak for its elf (even in reda cted form); these circumstance s , no less than disclosure, could cause curr ent and future staff historians
to curta il the candor and cre ative flair that the ag ency values as part of its History

proce ss.

Neither the majority opini o n nor the ag ency ’s curr ent decla rations explain why this parti cular draf t document is delibera tive, i.e.
, why rele ase of the draf t of Volume V “would
expose an ag ency ’s decisionmaking proce ss in such a way as to discourag e candid discussion wit hin the ag ency and there by undermine the ag ency ’s ability t o p erf orm its functions.”6

Dudman Commc’ns
, 815 F.2d at 1568. The ag ency claims that the draf t of Volume V is “refl ective of the iterative revie w proce ss of the CI A’s History Staff” and “re flec ts the g ive and take of the consultative proce ss.” Robarg e Dec l. ¶ 16. But the
ag ency also aver s that the draf t of Volume V “neve r proce eded bey ond the firs t stag e of the CI A revie w proce ss,” L utz Dec l. ¶ 20, “wa s never circ ulated within the [a] g ency ,” Robarg e Dec l. ¶ 1 5
, “does not incorporate information and perspe ctives that would arise from the in t er n al revie w proce ss,” id. ¶ 14 (empha sis added)
, and “re prese nts the view of mere ly one staff historian,” id. ¶ 12. Fr om the curr ent rec ord we know the Chief Historian in 1987 addre ssed potential harm from rele ase of the draf t of Vo l u m e V. See McDona ld Dec l. ¶¶ 13–14. But the
ag ency ’s subsequent decla rati o n s do not incorporate that analy sis, adopting instead only the descr iption of the History development pr ocess, see L utz Decl. ¶ 22, and the explanation of why the dra ft of Volume V w as rejected, see Robarg e Decl. ¶ 13. Notably
, the 1987 decla ration as s u m ed that the draf t of Volume V “will eventua lly g o throug h the full revision, editing and revie w proce ss” and “later draf ts or the final form of this history may be compar ed to [t he s t af f historian]’s version to deter mine what chang es in evidenc e, arg ument and interpre tation wer e made in completing this work.” McDona ld Dec l. ¶ 14. I n 2011, howeve r, the Chief Historian advised that “[a]lt houg h Dr. McDona ld hoped that Volume V could be edited to a final version, t h ese eff orts wer e unsucce ssful.” Robarg e Dec l. ¶ 15. And, of course , the 1987 decla ration
p recede d the ag ency ’s subsequent decisions to rele ase ot h er volumes of the “unfinished ” Hi s t ory , Robarg e Dec l. ¶ 12, including a draf

t of Volume I V. As noted, the 1987 explanation for withholding the draf

t of Volume V appea

rs to apply equally
to the draf

t of Volume I V, which the ag ency has twice publicly rele ased, and no ag ency decla ration has explained why the two draf ts should be t re ated differ ently for purposes of Ex emption 5. The rationale of Dudman Communications and Russell also7

aff ords no dispositi ve an s wer in the absenc e of a final version of Volume V with which to compar e the draf t n o w s o ug ht. Given the post-1987 public rele ases of the other volumes of the “unfinished” History
, and beca use “disclosure, not secr ecy , is the dominant objective of the Act,” Dep’ t of Air Force v. Rose
, 425 U.S. 3 5 2
, 3 61 (1976), the ag ency ’s prese nt relianc e on a cate g orica l approa ch for withholding the draf t of Volume V under Ex emption 5 does not satisfy the ag ency ’s burde n under the FO I A.

To the extent the majority ’s opinion sug g ests that ag ency draf t histories are also excu s ed fr om the s tatutory require ment that any “re asonably seg re gab le,” non-exempt materia l be rele ased to the reque ster, s ee 5 U.S.C. § 552(b), Dudman Communications indicated otherwise. There the court reje cted the arg ument that withholding rele ase of ag ency histories under Ex emption 5 “will allow ag encie s to hide all manner of fac tual information from public view ,” stating :

Our holding

. . . can h av e n o s u ch eff ect. I f a person reque sts particula

r fac tual materia l — e.g. , materia l rela ting to an investiga

tion of a war crime — an ag ency cannot withhold the materia l mere ly by stating that it is in a dra ft d o cu m ent. I n such a case , the
ag ency will usually be able to excise the materia l from the draf t document and disguise the materia l’s source , and thus the ag ency will usua lly be able to r elea se the materia l without disclosing any delibera tive proces s. When the ag ency ca n 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] fac tual summaries that wer e written to assist the making of a discr etionary decision,” Mapother , 3 F.3d a t 15398

(citing Mo ntrose Chem. Corp. of Cal. v. Train
, 491 F.2d 63 (D.C. Cir. 1974)), and it is conce ivable that a draf t history could include fac tual summaries that ref lect delibera ti v e judgme nts. Notwithstanding his criticisms of t he st aff historian’s work on

a “pre liminary draf

t” o f Volume V, the Chief Historian stated in 1987 that the “re sear ch materia l a nd draf ts w ill doubtless be of value” t o a st aff historian as s i gn ed to complete the History

. McDona ld Decl. ¶

6. This is not a sufficient re sponse her e.

Ex emption 5 rea ches fa ctual materia l only if it is “asse mbled throug h an ex erc ise of judgme nt” and does not extend, for example, to a mere “inventory
, prese nted in chronolog ical order ,” Mapother
, 3 F.3d at 1539. Be fore
g ranting summary judgme nt the district court did not revie w the draf t of Volume V in came ra — revie w that the Supreme Court has observe d is “ofte n

. . . require d

. . . in order to deter mine which [documents] should be tu rn ed over or withheld,” Mink
, 410 U.S. at 88 — and the ag ency has provided thi s court no basi s to conclude that all fac tual materia l in the draf t history ref lects delibera tive judgme nts. The decla ration of the ag ency ’s I nformation Review Officer sheds no light on seg reg ability
, stating only that the draf

t of Volume V “conta ins no rea sonably
seg reg able informa t i o n since the entire document is a draf t.” L utz Dec l. ¶ 25. Such a “vag ue and con cl u s o ry ” statement is “inade quate” to support summary judgme nt. PHE, Inc. v. Dep’ t of Justice
, 983 F.2d 248, 252–53 (D.C. Cir. 1993). “[A] blanket claim of privileg e under Ex emption 5,” Army Times Publ’g
, 998 F.2d at 1071, ap p ea rs , at this point, to be unwar rante d in light of the rele ase o f a d raft of Volume I V and the ag ency ’s acknow ledg ments about t he draft of Volume V, namely t h at it contains only “a small amount of classified information,” L utz Dec l. ¶ 14, and that it addre sses a 1961 investiga tion by the9

ag ency ’s I nspector Gene ral whose repor t the ag ency rele ased in 1997. 1

Neither Dudman Communications nor Russell cited the
seg reg ability provision in 5 U.S.C. § 552(b). Since those case s

wer e decide d this court h as held that, reg ardle ss of whether a reque st for seg reg ability is made, “‘a district court clea rl y err s when it approve s the g overnme nt’s withholding of information under the FOI A without making an ex p ress finding on seg reg ability ,’” Morley v. CIA
, 508 F.3d 1108, 1123 (D.C. Cir. 2007) (quoting PHE, Inc
., 983 F.2d at 252), and that “fa ilure to fulfill this responsibility requires a rema nd,” id

. The district
court sta t ed t h at “the entirety of Volume V is cover ed by Ex emption 5,” Nat’l Sec. Archive v. CIA
, 859 F. Supp. 2d 65, 68 n.2 (D.D.C. 2 0 1 2 ), but this statement was made in the contex t of explaining why i t was unnece ssary to addre ss the ag ency ’s invocation of FOI A Ex emptions 1 and 3
, n ot whether any portions o f the draf

t of Volume V wer e rea sonably seg reg able and non-e x empt.

Acc ording ly
, I would reve rse the g ra n t of summary ju d gm en t and rema

nd the case to the district court for further considera tio n

. See Citi

zens for Responsibility & Ethics in W ash. v. U.S. Dep’ t of

Justice
, No. 12-5223, slip op. at 18 (D.C. Cir. Apr. 1, 2014). The ag ency may be able to demonstrate its withholding of the entirety of the draf t of Volume V is justified under Exemption 5, but its c urre nt de clar ations do not meet its “burde n of proving ,” the cate g orica l applicability of the delibera tive proce ss privileg e, Ancient Coin Collectors Guild v.

See Appell ant’s Br. 13 n.5 (c it ing I nspec to r Gene ra l’s 1 Surv ey of the Cuban Oper at ion an d Ass oc ia te d Doc um ents (1961) (i ndica ti ng re le as e thro ugh CI A His to ri ca l Rev ie w Pro gr am in 1997 ), avail able at http:/

/w w w .gw u.edu/~ns ar chiv

/NSAEBB/

NSAEBB341/ I Grpt1.pdf)10

U.S. Dep’ t of State
, 641 F.3d 504
, 5 0 9 (D.C. Cir. 2011); see U.S. Dep’ t of

Justice v. Reporters Comm. for Freedom of Press
, 4 8 9 U.S. 749, 755 (1989). L ikewise, it is possible t h at seg reg ating and rele asing no n-exempt portions of the draf t of Volume V may be unwar

rante d, but the district court has y et to make that requisite “express finding .” On remand, the di strict court’s ree valuation of E x empt ion 5 should include considera tion of the eff

ect of the passag e of time; the ag ency is “not arg uing, and has never arg ued, that a court shoul d never consider the passag e of time in deter mining whether a document is protec ted by Ex emption 5,” Appellee ’s Br

. 19, and it has identified the draf

t of Volume V as “re prese nt[ ing] the view of

mere ly one staff historian,” Robarg e Dec l. ¶ 12, expressed thirty
y ear s ag o about events that occur red ov er fi fty y ear s ag o. There afte r, as nece ssary , the district court should addre ss t he applicability of Ex emptions 1 and 3 also invoked by the ag ency

. I respe ctfully

dissent.