N.Y. Times Co. v. DOJ, No. 22-2232, 2024 WL 1109260 (2d Cir. Mar. 14, 2024) (per curiam)

N.Y. Times Co. v. DOJ, No. 22-2232, 2024 WL 1109260 (2d Cir. Mar. 14, 2024) (per curiam)

Re:  Request for report issued by independent monitor tasked with overseeing Intervenor Volkswagen AG’s (“VW”) compliance with plea agreement that it entered into with DOJ following the discovery of VW’s scheme to evade emissions requirements

Disposition:  Affirming district court’s judgment

• Exemption 5, Deliberative Process Privilege & Foreseeable Harm and Other Considerations; Litigation Considerations, “Reasonably Segregable” Showing:  The Court of Appeals for the Second Circuit relates that, “[o]n appeal, [plaintiff] challenges the withholding of certain factual material underlying the Monitor’s observations and recommendations, which the district court found was ‘inextricably intertwined’ with the Monitor’s subjective analysis and thus protected under Exemption 5.”  “[Plaintiff] also argues that DOJ has not met its burden of showing that disclosure of that factual material would foreseeably harm an interest protected by Exemption 5.”
  
  “[The court] first consider[s] whether DOJ meets its burden of showing that the material at issue, while factual, is inextricably intertwined with the Monitor’s policy making recommendations, and thus DOJ’s deliberative process, to warrant withholding.”  “DOJ has met its burden.”  “The material at issue in the report represents information that, though factual, the Monitor selectively culled from a larger set of facts available to him.”  “The Monitor selected certain facts to highlight and incorporated them into his various observations and recommendations, and thus they are ‘inextricably intertwined’ with his subjective analysis and are properly withheld under the deliberative process privilege.”  “DOJ’s declarations sufficiently explain how disclosure of the material would itself reveal DOJ’s considerations in overseeing plea deals with VW and other companies.”  “In finding that DOJ has met its burden of establishing that the factual material is properly withheld under Exemption 5, we accord a ‘presumption of good faith,’ . . . to DOJ’s declaration that it conducted its own line-by-line segregability analysis to ensure that it was withholding only factual material that was inextricably intertwined with deliberative material.”  “The district court conducted a thorough, line-by-line review of the Report and, indeed, ordered disclosure of some of the withheld factual material because it determined that material was not inextricably intertwined with the policy recommendations.”  “[The court] agree[s] with the district court’s application of Exemption 5’s legal principles.”
  
  “DOJ has also met its burden of showing foreseeable harm under 5 U.S.C. § 552(a)(8)(A) because its declarations describe with ‘reasonably specific detail’ how disclosure would result in harm to its deliberative processes, namely, its ability to ensure candor between the agency and an independent monitor, so that DOJ can enter and effectively enforce plea agreements with companies like VW.”  “DOJ represented that the Report ‘combines the Monitor’s in-depth assessment of VW’s actions to implement the plea agreement with his frank analysis of what must be done for such implementation to succeed,’ . . . and disclosure of that material ‘puts at risk [DOJ’s] ability to obtain similarly useful analysis in the future,’ . . . DOJ’s evaluation of a company’s adherence to a plea agreement ‘depends, in no small part, on the [ability of] monitors[ ] and the DOJ to communicate openly and honestly without concern that such discourse would become public,’ . . . and thus DOJ has adequately demonstrated that the withheld information ‘logically falls within the claimed exemption’ . . . .”  “Because DOJ’s declarations ‘directly articulate[ ] “a link between the specified harm and the specific information contained in the material withheld,”’ . . . DOJ has met its burden of showing that disclosure of the factual material would reasonably, and foreseeably, harm the interests protected by the deliberative process privilege.”