Pub. Citizen, Inc. v. Dep't of Educ., No. 18-1047, 2019 WL 2211118 (D.D.C. May 22, 2019) (Kollar-Kotelly, J.)

Pub. Citizen, Inc. v. Dep't of Educ., No. 18-1047, 2019 WL 2211118 (D.D.C. May 22, 2019) (Kollar-Kotelly, J.)

Re:  Request for records concerning October 2, 2017 "Cutting the Red Tape" event

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

• Exemption 5, Deliberative Process Privilege & Attorney-Client Privilege:  "[T]he Court concludes that the information redacted on [one set of] documents . . . was properly withheld under the attorney client privilege and deliberative process privilege grounds of FOIA Exemption 5."  The court finds that "[t]he redacted portion of the first line of the email relates to ongoing deliberations regarding still-pending decisions on who should be invited to Defendant's October 2, 2017 event."  Additionally, the court finds that "[w]hile the subject lines of emails are regularly produced in FOIA cases, under these circumstances, the Court finds that the subject line of the email chain was properly withheld under the attorney-client privilege as its disclosure would reveal the client's motivation in seeking legal advice."  Also, "the Court concludes that disclosure of [an] attorney's name would disclose that Defendant acted on a specific 'motive . . . in seeking representation.'"  The court explains that "[d]isclosure of such information in this context creates the risk that agency clients may feel constrained from reaching out to legal counsel for required legal advice due to fear of public disclosure."  "However, the Court does not find the redaction of the attorney's name proper on the basis of the attorney client privilege alone."  "The Court further finds that the redaction of the attorney's name is proper under the deliberative process privilege."  "Releasing the name of the attorney who was consulted as a part of Defendant's decision-making process would necessarily reveal information about Defendant's decision-making process."  The court finds similarly with several other sets of similar records.
  
  Regarding several other sets of emails, "[t]he Court finds that the redacted portion of the email reflects the type of agency decision-making process that is protected under the deliberative process privilege."  The court relates that "an employee with the Executive Office of the President, provided Defendant with guidance for its October 2, 2017 event."  "In reaction, [an employee] emailed another employee within the Executive Office of the President regarding complications arising from that guidance and a potential solution."  "The Court further finds that the redacted email was also pre-decisional."  The court explains that "the solution was part of a back-and-forth between Defendant and the Executive Office of the President in order to ensure that the structure of the event was tailored to the requirements of both Defendant and the Executive Office of the President."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "Having reviewed all of the redacted information as well as the Declarations by Defendant . . ., the Court is satisfied that no reasonably segregable information has been withheld."