Conservation Force v. Jewell, No. 12-1665, 2014 WL 4327949 (D.D.C. Sept. 2, 2014) (Jackson, J.)

Conservation Force v. Jewell, No. 12-1665, 2014 WL 4327949 (D.D.C. Sept. 2, 2014) (Jackson, J.)

Re: Request for records concerning import permits for Canadian wood bison trophies since 2000

Disposition: Granting in part defendant's motion for summary judgment; denying without prejudice remainder of defendant's and plaintiff's cross-motions for summary judgment

• Exemption 5, "Inter-Agency or Intra-Agency" Threshold Requirement:  The court notes that "there is no dispute that the documents at issue are 'inter-agency or intra-agency documents.'"  "Indeed, Plaintiffs do not contest this fact in their opposition."
   
• Exemption 5, Deliberative Process Privilege:  The court "concludes that Defendants have thus far failed to satisfy their burden of establishing that Exemption 5 was properly invoked to justify withholding information pursuant to the deliberative process privilege."  The court explains that "[f]irst, Defendants appear to rely primarily (if not solely) on the fact that each of the documents is a 'DRAFT'—but that designation alone does not establish that any document is predecisional and deliberative, which proper invocation of the deliberative process privilege requires."  "Here, Defendants' submissions fail to demonstrate that the 'draft' documents being referenced are, in substance, expressing the 'ideas and theories which go into the making of the law' rather than 'the law itself.'"  "Second and relatedly, Defendants' Vaughn Index fails to identify the particular agency decision that the record document predates, which is necessary to establish that the document is, in fact, predecisional."  "Third, and perhaps most significant, Defendants have provided little if any information regarding the role of the document's author with respect to the agency's decisionmaking process."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "[t]he relatively detailed entries in Defendants' Vaughn Index related to the attorney-client privilege, coupled with the [defendant] declaration and the context of the Wood Bison litigation, are enough to satisfy this Court that the Defendants have met their burden of justifying the Exemption 5 redactions that were made based on the attorney-client privilege."  The court explains that "[d]efendants have ably demonstrated that (1) the listed documents were communications between agency employees and agency counsel, . . . (2) the communications pertained to legal advice or litigation, . . . and (3) the content of the communications was kept confidential."  The court also finds that "[p]laintiff has failed to prove that any crime or fraud was committed here, let alone that the communications at issue were made with an intent to further the unlawful act."
   
• Exemption 5, Attorney Work-Product Privilege:  The court holds that "[d]efendants have failed to present sufficient evidentiary support to sustain a finding that the work product doctrine justifies the redactions."  The court explains that "[d]efendants do not provide any information to support the ‘work product’ contention; rather, the document descriptions merely state that the redactions pertain to attorney-client communications."
   
• Exemption 6:  The court holds that, " [w]eighing the interests at issue, this Court accepts Defendants' contention that the personal information redacted from the documents pursuant to Exemption 6 'would shed little or no light' on the agency's performance of its duties."  The court finds that "[d]efendants' Vaughn Index demonstrates that the redactions made pursuant to Exemption 6 involved particular employees, and that only such personalized information was redacted, while the remainder was released."  The court also finds that plaintiff "makes only purely speculative assertions regarding the potential reasons why this type of personal information appears in the responsive documents in the first place."