Jud. Watch, Inc. v. DOJ, No. 17-0832, 2020 WL 5593930 (D.D.C. Sept. 18, 2020) (Kollar-Kotelly, J.)

Jud. Watch, Inc. v. DOJ, No. 17-0832, 2020 WL 5593930 (D.D.C. Sept. 18, 2020) (Kollar-Kotelly, J.)

Re:  Request for certain emails received by or sent from DOJ email account used by former Acting Attorney General Sally Yates

Disposition:  Granting defendant's second motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm:  The court relates that "DOJ has invoked the deliberative process privilege under FOIA Exemption 5, to withhold four drafts of Acting Attorney General Yates' January 30, 2017 memorandum regarding Executive Order 13,769."  "As an initial matter, the Court has little trouble finding that these four draft memoranda fall under the deliberate process privilege within FOIA Exemption 5."  "Working drafts of a DOJ policy statement to be issued by the Acting Attorney General regarding the legality of an executive order appear manifestly 'deliberative' and 'predecisional.'"  "A more difficult question, however, is whether DOJ has set forth a sufficient justification for its FOIA withholdings under the FOIA Improvement Act."  On that issue, the court finds that "[defendant's] affidavit here identifies the content of the withheld documents (draft statements on the validity of Executive Order 13,769), and affirmatively concludes that these documents 'would reveal . . . ideas and alternatives' regarding the Executive Order, which were 'considered but ultimately rejected in the final agency decision.'"  "Importantly, [defendant's] affidavit also explains why the disclosure of these particular draft memoranda would implicate the specific harms identified."  "[T]he disclosure of the drafts . . . would reveal the drafters' evolving thought-processes regarding the Executive Order, as well as ideas and alternatives considered but ultimately rejected in the final agency decision."  "[Defendant's] affidavit also specifically connects the disclosure of these drafts to a tangible chilling effect, here amongst high-level DOJ personnel when crafting public statements on agency policy."  It also "emphasizes the unique threat posed by the disclosure of drafts pertaining to 'such a high-profile matter as the defense of Executive Order 13,769.'" 
   
• Exemption 5:  Regarding plaintiff's misconduct argument, the court finds that "it is not clear in this circuit whether a government misconduct exception may properly be invoked in a FOIA case."  "But even assuming such an exception did apply, a plaintiff must meet a high bar to properly invoke it."  "Indeed, only 'extreme government wrongdoing' would be sufficient to trigger the exception."  The court explains that "Plaintiff has provided no authority to credibly suggest that Ms. Yates' draft memoranda meet this standard."  "To the contrary, these documents are 'working drafts' of a DOJ policy statement addressing the validity of an executive order, passed between the Acting Attorney General herself and one of her principal aides."  "Far from an egregious act of government wrongdoing, such internal drafts concerning the legality of government action lie at the very heart of the Attorney General's official role."  "And the fact that Ms. Yates ultimately disagreed with the President's view on Executive Order 13,769, in and of itself, does not represent foul play, but rather independent judgment."  "Nor does the President's decision to relieve Ms. Yates of her post after this disagreement suggest malfeasance, as [plaintiff] implies."  "Instead, it represents the administrative prerogative of a President to remove an executive officer who holds views diverging from his own."