Campaign Legal Ctr. v. DOJ, No. 18-1771, 2020 WL 2849909 (D.D.C. June 1, 2020) (Chutkan, J.)

Campaign Legal Ctr. v. DOJ, No. 18-1771, 2020 WL 2849909 (D.D.C. June 1, 2020) (Chutkan, J.)

Re:  Request for records concerning two individuals, as well as records containing certain search terms related to census citizenship question

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

• Litigation Considerations, Adequacy of Search:  Regarding Civil Rights Division ("CRT"), "the court will grant summary judgment for [plaintiff]."  The court holds that "DOJ's use of a single search term for all the digital records does not pass muster under ["'a standard of reasonableness'"]."  "It is likely that responsive digital documents exist which do not have the word 'census' in them."  "Thus, because only one search term was used, and that term was inadequate, the search was not 'reasonably calculated to uncover all relevant documents.'"
  
  Regarding Justice Management Division ("JMD"), the court finds that "JMD's search may have been limited in scope, but there is no evidence to suggest that it was inadequate.  Individuals with knowledge of the process determined where the records would be found, and JMD used all [plaintiff's] requested search terms to search that source."  "The court concludes that JMD 'made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.'"
   
• Exemption 5, Other Privileges:  Regarding CRT, the court holds that "DOJ has not asserted sufficient facts to show that the documents at issue were protected by the [presidential communications privilege]."  The court relates that "CRT withheld twenty-three pages of email correspondence between DOJ attorneys and White House staff . . . deal[ing] with notifying Congress of DOJ's request for a census citizenship question."  The court notes that "DOJ does not assert . . . that the President was involved in the communications or that the President viewed any of the documents related to the communications, or that the communications related to advice to be given to the President."  The court holds that "[a]bsent these assertions, the privilege does not apply."  "'The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.'"  "DOJ does describe the communications as a 'subject of potential presidential decisionmaking' . . . but does not state that the President actually did make the decision or that the communications were 'made by presidential advisers in the course of preparing advice for the President.'"
  
  Regarding the Office of Information Policy ("OIP"), the court holds that this "reasoning applies to OIP as well."  "While the OIP declaration is more thorough than CRT's (for example, it contends that the subject of communication is one of 'presidential concern and decision'), it still falls short of asserting that the President was actually involved or would be involved in this decision in any capacity."
   
• Exemption 5, Deliberative Process Privilege:  Regarding CRT, first, "[b]ecause [drafts of letters regarding the citizenship question] are not predecisional, the court need not decide whether they are deliberative, and will grant summary judgment for [plaintiff] as to the Exemption 5 withholdings of these documents."  The court relates that the parties "disagree about what constitutes the relevant agency decision:  the decision to write the letter, or the decision about the letter's final contents."  The court holds that "the relevant decision in any given case is one that involves discretion about what an agency position or agency policy should be."  "The letter at issue did not involve discretion about an agency position or about the primary reasons for the agency position."  "The agency's position and the reasons for the letter had already been decided."  "Thus, the drafting did not demonstrate 'the process by which policy is formulated,' nor could it 'reasonably be said to reveal an agency's or official's mode of formulating or exercising policy-implicating judgment.'"  "Moreover, [the authors] were not drafting the document so that a supervisor or colleague could decide a particular issue."  "They were not used to help the agency make a decision, but rather were used to communicate the decision."
  
  Second, "[t]he court agrees with DOJ that '. . . two memoranda are predecisional because they were drafted before JMD made any decisions concerning whether to suggest new questions to the U.S. Census Bureau.'"  "Further, the documents are deliberative because they are 'a part of the agency give-and-take of the deliberative process by which the decision itself is made.'"
  
  Regarding OIP, first, the court finds that "the deliberative privilege is also inapplicable to OIP's withholding of [drafts of letters regarding the citizenship question]."
  
  Second, the court finds that "the deliberative process privilege applies and the court will grant summary judgment for DOJ as to ["'internal emails among DOJ staff containing deliberations about how to respond to press inquiries'"]."  The court finds that "[t]he documents are pre-decisional because they were created before the agency responded to a press inquiry, and they are deliberative because they are 'a part of the agency give-and-take of the deliberative process by which the decision itself is made.'"
  
  Regarding JMD, the court finds similarly regarding JMD's withholding of draft letters regarding the citizenship question.
   
• Litigation Considerations, Vaughn Index/Declaration:  "[T]he court is unable to rule on whether the deliberative process privilege applies [to two memoranda that CRT sent to JMD] because DOJ does not specify what portions of the records are covered by it."  "Because the court has determined that the presidential process privilege is inapplicable, DOJ must decide what portions of the responsive documents are covered by the deliberative process privilege."  "Once it does, DOJ has a duty to segregate and produce any portions not covered by Exemption 5."  The court finds similarly concerning OIP's declaration.
  
  Also, "[t]he court does not have enough information to determine whether the [deliberative process] privilege applies [to other draft documents withheld by OIP]."  "It is undisputed that the drafts were created before being sent to the Commission, and that they reflect deliberations about the contents of the documents."  "But DOJ has not disclosed what types of decisions were involved in drafting the interrogatory responses."  "As a result, the Court has no way of knowing whether the contents of these documents reflect 'the formulation or exercise of . . . policy-oriented judgment.'"  Similarly,"[t]he court finds that OIP has not provided enough information for the court to determine whether the privilege applies to several [other] documents or portions thereof."  The court finds that "[i]t is not enough to say that something is a draft or to say that it was deliberative; more information is needed."
  
  Regarding JMD, the court finds that "the description states only that [one document] is a draft letter'" and "[n]either the JMD declaration nor the briefing provide any additional information."  "With so little information, the court cannot meaningfully determine whether the draft properly falls under Exemption 5."  The court finds similarly regarding a document withheld only because JMD stated that "'this is an interagency communication discussing how the Commerce Department is considering handling a matter.'"
   
• Exemption 5, Attorney Work-Product & Attorney-Client Privilege:  The court grants summary judgment to CRT regarding the withholding of "handwritten cover note and memorandum" because "[w]hile [plaintiff] challenges all withholdings under the deliberative process privilege, [plaintiff] does not challenge withholding this material under the attorney work product privilege or the attorney client privilege."
   
• Exemption 5, Attorney Work-Product:  "The court agrees with [plaintiff] that the draft responses [to interrogatories from the United States Commission on Civil Rights] were created 'not because of the prospect of litigation, but to provide information' to Congress."  The court relates that "DOJ does not contend that the Commission's request itself constitutes litigation, but rather that the request put OIP in reasonable anticipation of future litigation."  "Even if this is true, however, it does not follow that the interrogatory responses were created 'because of' litigation."  "Absent an assertion to the contrary, it appears that OIP would have responded to the interrogatories regardless of whether it thought litigation would ensue."  "The court agrees with [plaintiff] that the draft responses were created 'not because of the prospect of litigation, but to provide information' to Congress."