UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

 

 ) 

CENTER FOR PUBLIC INTEGRITY, ) 

 ) 

 Plaintiff, ) Civ. No. 17-1162 (CRC) 

 ) 

 v. ) 

 ) OPPOSITION AND REPLY 

FEDERAL ELECTION COMMISSION, ) AS TO SUMMARY JUDGMENT 

 ) 

 Defendant. ) 

 ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

OPPOSITION TO PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT 

AND REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

October 12, 2017 

Harry J. Summers 

Assistant General Counsel 

Seth Nesin 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

Case 1:17-cv-01162-CRC Document 16 Filed 10/12/17 Page 1 of 6
INTRODUCTION 

The Federal Election Commission (“FEC” or “Commission”) has provided detailed 

explanations showing that it properly withheld information responsive to the two Freedom of 

Information Act (“FOIA”) requests at issue here. Plaintiff Center for Public Integrity’s (“CPI”) 

cross-motion for summary judgment does not argue that the FEC unreasonably delayed in 

providing documents or that the FEC failed to adequately search for responsive documents. Any 

such claims are now waived. See Oceana, Inc. v. Pritzker, 24 F. Supp. 3d 49, 72 (D.D.C. 2014) 

(in judicial review of agency action, “a plaintiff’s failure to raise arguments or theories in its 

motion for summary judgment results in waiver of those arguments”). The sole argument CPI 

makes now is that the FEC’s explanations for its withholding decisions were inadequate. 

However, the FEC’s detailed descriptions of the protected material, including through the 

declaration attached to its opening brief and the Vaughn index attached to this brief, are clearly 

sufficient for the Court to evaluate the agency’s decisions. Specifically, the submissions show 

that the agency properly withheld the information at issue pursuant to the deliberative process 

privilege under FOIA Exemption 5. Summary judgment should be granted to the FEC. 

I. THE FEC’S SUBMISSIONS SHOW THAT THE @altFEC DOCUMENTS WERE 

PROPERLY WITHHELD PURSUANT TO FOIA EXEMPTION 5 

With regard to materials responsive to the FOIA request about the “@altFEC” Twitter 

account, the Commission described in its principal brief why fourteen pages of documents were 

not disclosed, under 5 U.S.C. § 552(b)(5) (Exemption 5), pursuant to the deliberative process 

privilege. (FEC’s Mem. in Supp. of Mot. for Summ. J. (“Mem.”) at 7-14 (Docket No. 12).) The 

Assistant General Counsel who supervises the FEC’s Administrative Law Team provided a 

declaration explaining that the privilege applied because the documents “consisted of 

communications among attorneys at different levels in the FEC’s Office of General Counsel 

Case 1:17-cv-01162-CRC Document 16 Filed 10/12/17 Page 2 of 6
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working to identify and analyze potential legal issues that the ‘@altFEC’ Twitter account might 

raise.” (Higginbothom Decl. ¶ 6 (Docket No. 12-1).) And the declaration further explained that 

the documents did not contain any reasonably segregable non-exempt information. (Id.) In 

order to provide further context, the Commission has also attached a Vaughn index to this filing 

that identifies the senders, recipients, and dates of each withheld email, as well as specific 

explanations of why each document was withheld. Exh. A; see Vaughn v. Rosen, 484 F.2d 820, 

827 (D.C. Cir. 1973) (a Vaughn index is a document that lists all withheld records, the specific 

FOIA exemptions applicable to each, and the agency’s justifications for nondisclosure). 

Plaintiff argues that the FEC provided insufficient detail with its opening briefing to 

“establish whether segregable non-exempt information actually exists,” but these arguments lack 

merit. (See Mem. of P.&A. in Supp. of Pl.’s Cross-Mot. for Summ. J. and in Opp’n to Def.’s 

Mot. for Summ. J. (“Pl.’s Mem.”) at 5 (Docket No. 13).) As the FEC explained in its principal 

brief (FEC’s Mem. in Supp. of its Mot. for Summ. J. (“FEC Mem.”) at 5-6 (Docket No. 12)), 

summary judgment is warranted when the government submits declarations that demonstrate 

with adequate specificity the reason for the withholding and that the information withheld 

logically falls within the claimed exemption. Agency affidavits submitted in the FOIA context 

are accorded a presumption of good faith. FEC Mem. at 6; see also Davis v. DOJ, 970 F. Supp. 

2d 10, 14 (D.D.C. 2013) (government affidavits adequate if they are “not controverted by either 

contrary evidence in the record [or] by evidence of agency bad faith.”) (alteration in original) 

(internal citation and quotation marks omitted); Mobley v. Dep’t of Justice, 870 F. Supp. 2d. 61, 

65 (D.D.C. 2012) (same). 

In this case, contrary to plaintiff’s claims, the FEC’s declaration sufficiently described the 

nature of the documents, and the Vaughn index removes any doubt that the agency’s withholding 

Case 1:17-cv-01162-CRC Document 16 Filed 10/12/17 Page 3 of 6
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decisions are justified. As those submissions show, the withheld documents are subject to the 

deliberative process privilege because they consist of emails among attorneys at different levels 

working to preliminarily identify and analyze potential legal issues and whether additional action 

may be needed, and the information contained in them is not reasonably segregable. See Coastal 

States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (holding FOIA 

Exemption 5 protects from disclosure the “give-and-take of the consultative process”); Wolfe v. 

Dep’t of Health and Human Servs., 839 F.2d 768, 776 (D.C. Cir. 1988) (“[W]hen agency 

opinions are fluid and tentative,” . . . “disclosure could chill discussion [when] subordinates are 

reporting to superiors.”). Plaintiff argues that information about the senders, recipients, and 

dates of the emails are non-deliberative and should have been made available (Pl.’s Mem. at 5); 

in any event, the FEC Vaughn index now provides the information plaintiffs seek. Forcing the 

FEC to explain each email in greater detail would undermine the purpose of the privilege by 

revealing the very content that is being withheld. If such preliminary information was released 

and subject to public scrutiny before being debated and refined, employees involved in these 

sorts of ethics compliance issues would be reluctant to engage in written discussion of such 

issues and consideration of planned future action, thus adversely affecting the quality of 

recommendations and counsel to the agency officials operating that ethics program. In addition, 

because several of the withheld emails consist of a single sentence or two, it would be impossible 

to disclose much content from the email without revealing it in full. Nor is there any basis to 

believe that the FEC’s explanatory submissions were made in bad faith, and there is no 

contradictory evidence in the record. Thus, the FEC has adequately explained and justified the 

logic of its withholding decisions with regard to the “@altFEC” information. 

Case 1:17-cv-01162-CRC Document 16 Filed 10/12/17 Page 4 of 6
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II. THE FEC’S SUBMISSIONS SHOW THAT MINOR REDACTIONS TO THE 

OMB DOCUMENTS WERE PROPERLY MADE PURSUANT TO FOIA 

EXEMPTION 5 

The FEC also made minor redactions pursuant to FOIA Exemptions 5 and 6 in the 

fourteen pages it provided responsive to the second FOIA request, which sought certain materials 

originating with the Office of Management and Budget (“OMB”).1

 Plaintiff now challenges the 

Exemption 5 redactions, which occurred on only two of the pages at issue. However, the FEC 

has included adequate explanations for those two redactions on its Vaughn index, including 

information about the senders and recipients. (See Exh. A.) As described in that index, the first 

redaction, of an agenda for an OMB conference call with certain agency representatives, was 

made pursuant to the deliberative process privilege because disclosure would reveal preliminary 

plans regarding subjects to be addressed in a future meeting. The second redaction, also from an 

OMB email, was redacted under the same privilege because disclosure would reveal suggestions 

regarding assessments of agency management of information resources. These portions of the 

emails reveal suggestions for potential future action and if subject to potential public scrutiny, 

employees would be reluctant to engage in these sorts of deliberations. Thus, the FEC’s Vaughn 

index adequately describes the content of the two redactions and shows why the deliberative 

process privilege applies. In addition, the FEC has attached the two pages at issue in redacted 

form, in order to provide the Court with further context in evaluating the redactions. (Exh. B.) 

These submissions are sufficiently detailed for the Court to determine that these limited 

redactions represent a proper withholding of information under FOIA. 

 

 

1

 As plaintiff notes (Pl.’s Mem at 4), the FEC has not previously provided detailed 

explanations for these redactions, but that was because the FEC was only able to disclose the 

materials in early September, after the agency received the results of its consultation with OMB, 

and plaintiffs had not yet challenged the withholding explanations at that time.

Case 1:17-cv-01162-CRC Document 16 Filed 10/12/17 Page 5 of 6
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CONCLUSION 

For the reasons stated in the FEC’s principal brief and this brief, the Court should grant 

summary judgment to the Commission. 

 Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

snesin@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

(202) 694-1650 

October 12, 2017 

Case 1:17-cv-01162-CRC Document 16 Filed 10/12/17 Page 6 of 6