American Center for Law and Justice v. DOJ, No. 16-2188, 2018 WL 4283561 (D.D.C. September 7, 2018) (Kelly, J.)

American Center for Law and Justice v. DOJ, No. 16-2188, 2018 WL 4283561 (D.D.C. September 7, 2018) (Kelly, J.)

Re:  Request for records of June 2016 meeting between former Attorney General Lynch and former President Clinton

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration: The court holds that the defendant does not need to submit a Vaughn index, explaining, "the law does not inflexibly require a Vaughn index in every FOIA case."  Here, the defendant "has provided a declaration describing the categories of information it has withheld, and [its] basis for asserting the deliberative process privilege over each category," in addition to identifying each document broken down by category and filing on the record copies of the documents at issue with redactions.
   
• Exemption 5, Deliberative Process Privilege:  The court largely agrees with the withholding of "email communications among officials from different DOJ offices . . . discussing how to respond to particular media inquiries identified in the unredacted text."  In response to the plaintiff's argument that talking points were not predecisional, the court states, "a senior official . . . may elect to use all, some, or none of the talking points prepared for her."  In this case, the "context surrounding the June 28 talking points, which were written for Attorney General Lynch but concerned events she had personally witnessed, strongly suggests that the talking points were no more than advice from subordinates" and "the final decision was what Attorney General Lynch actually said to the media."  The court further explains, "the talking points remain protected even though Attorney General Lynch followed them and even though they were repurposed for other press inquiries" because she might not have followed them.  However, the court requires the defendant to provide additional context for two documents to justify withholding under the deliberative process privilege.     
   
• Litigation Considerations, "Reasonably Segregable" Requirements: The court agrees with the defendant that segregating out "'factual' material from the talking points and other documents at issue would disclose its internal deliberations."  The court explains, "[c]ommunications with media often consist of nothing more than a judicious selection and presentation of facts."  "Thus, releasing 'factual' material from talking points would almost inevitably reveal the agency’s deliberations on how to present those facts."