UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BARTON GELLMAN,

Plaintiff,

v. Case No. 16-cv-635 (CRC)

DEPARTMENT OF HOMELAND SECURITY, et al.,

Defendants.

MEMORANDUM OPINION

Journalist Barton Gellman challenges the withholding of documents responsive to his

Freedom of Information Act (“FOIA”) requests to numerous federal agency components for all

records that mention his name. In a prior ruling, this Court found that some of the withholdings

were not supported by adequate explanations. After producing some previously withheld records

to Mr. Gellman, the agency defendants filed their second motion for summary judgment,

attaching new, more detailed declarations in defense of the remaining withholdings. Gellman

opposes that motion and has filed a renewed cross-motion for partial summary judgment. He

urges the Court to order some of the withheld records released and to demand more information

from the agencies about other withholdings.

After carefully reviewing the record, the Court concludes that all of the documents that

remain in dispute are exempt from disclosure under FOIA. The Court will therefore enter

summary judgment for the defendants and bring this protracted case to a close.

I. Background

Barton Gellman is a Pulitzer Prize-winning journalist who reports on foreign affairs, the

military, and intelligence issues. In 2013 and 2014, Mr. Gellman reported for the Washington Post on documents that had been leaked by former National Security Agency (“NSA”)

contractor Edward Snowden. Gellman Decl. ¶ 6, ECF No. 41-4. Throughout 2015, Gellman

submitted FOIA and Privacy Act requests to nine separate components of federal agencies

(collectively, “the Government”) seeking all records that mention his name. Id. ¶¶ 14-22;

Compl. Exhs. A-I. 1 After some agencies failed to respond within the statutory timeframe and

others informed Gellman that they were withholding all responsive records, he filed this suit in

April 2016. Over the next two years, the Government adhered to the Court’s order to process

and produce responsive, non-exempt records on a monthly basis.

After the Government issued its final response, the parties determined that dispositive

motions were necessary. The Government moved for summary judgment, supported by

declarations from each agency, including two ex parte declarations for the Court to review in

camera, explaining each withholding and redaction. Gellman filed a cross-motion for partial

summary judgment and asked the Court to review certain documents in camera.

In March 2020, the Court issued a lengthy Memorandum Opinion granting in part and

denying in part both sides’ summary judgment motions. The Court entered summary judgment

for the Government as to most of the challenged withholdings. Gellman v. DHS, No. 16-cv-35

(CRC),

, at *1 (D.D.C. Mar. 20, 2020). It also ordered the Government to

produce “all emails to or from Gellman himself that were forwarded to someone else within the

1 The recipient agencies are: the Department of Homeland Security—including its components the Office of Legislative Affairs, the Office of Intelligence and Analysis, and the Transportation Security Administration; the Department of Justice (“DOJ”)—including its components the Federal Bureau of Investigation, the Criminal Division, the Office of Information Policy (“OIP”), and the National Security Division; and the Office of the Director of National Intelligence (“ODNI”). Some agencies sought a consultation from the NSA, which requested certain withholdings on its behalf.

2 agency” and to remove any “unexplained” redactions based on asserted non-responsiveness “in

records that are narrower than the email level.”

at *2 n.4, *5 n.7. More importantly for

present purposes, the Court identified “several issues where an agency needs to provide more

detailed descriptions of the withheld or redacted documents” and denied summary judgment to

both sides on those issues, inviting the Government to file another motion for summary judgment

supported by additional information. Id. at *1.

The Government renewed its summary judgment motion as to all outstanding issues in

June 2020, attaching declarations by four agency officials. Gellman opposed the Government’s

motion and filed a cross-motion for partial summary judgment, asking the Court to order the

Government to produce certain documents withheld based on the deliberative process privilege

or purported non-responsiveness. Both motions are now fully briefed.

In their motion papers, the parties identify five remaining issues: (1) whether ODNI has

adequately justified its withholding of two sentences in an email regarding the filling of an

agency position; (2) whether OIP properly withheld drafts of statements to the news media; (3)

whether OIP demonstrated that one email discussing a press report was exempt from disclosure;

(4) whether OIP complied with FOIA and this Court’s prior ruling in withholding certain news

clips as non-responsive; and (5) whether OIP properly withheld briefing materials prepared for

then-Attorney General Eric Holder and other senior DOJ officials in anticipation of meetings

including an interview with Mr. Gellman.

II. Legal Standard

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Dep’t of Air Force v. Rose,

(1976). At

the same time, FOIA contains a set of exemptions to an agency’s general obligation to provide

3 government records to the public, see

(b), which are meant “to balance the

public’s interest in governmental transparency against the legitimate governmental and private

interests that could be harmed by release of certain types of information.” United Techs. Corp.

v. Dep’t of Def.,

(D.C. Cir. 2010) (cleaned up). Because FOIA “mandates a

strong presumption in favor of disclosure,” its “statutory exemptions, which are exclusive, are to

be narrowly construed.” Nat’l Ass’n of Home Builders v. Norton,

(D.C. Cir.

2002) (internal quotation marks omitted).

Summary judgment is the typical and appropriate vehicle to resolve FOIA disputes. See

Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C. 2009). When seeking

summary judgment, the Government bears the burden to establish that its claimed FOIA

exemptions apply to each record for which they are invoked. ACLU v. Dep’t of Def.,

(D.C. Cir. 2011). It may satisfy this burden through agency declarations that

“describe[] the justifications for withholding the information with specific detail,

demonstrat[ing] that the information withheld logically falls within the claimed exemption.”

“Such declarations are entitled to a presumption of good faith, and the court can award the

agency summary judgment based solely on the information so provided.” Judicial Watch, Inc. v.

CIA,

(D.D.C. 2018). But agency declarations will not support summary

judgment if the plaintiff puts forth contrary evidence or demonstrates the agency’s bad faith.

ACLU,

.

III. Analysis

As already noted, the present summary judgment motions present five issues. The Court

will address each issue in turn.

4 A. ODNI adequately justified its withholding of two sentences in a January 2014 email.

The parties dispute only one withholding by ODNI: a two-sentence redaction in an email,

ODNI Document 42, based on the deliberative process privilege. The Court concludes that

ODNI has adequately justified this redaction.

FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums

or letters that would not be available by law to a party other than an agency in litigation with the

agency.”

(b)(5). “This exemption includes all privileges that would apply during

discovery in ordinary litigation, including the deliberative process privilege.” Gellman,

, at *11.

The deliberative process privilege serves “to encourage frank discussion of policy

matters, prevent premature disclosure of proposed policies, and avoid public confusion that may

result from disclosure of rationales that were not ultimately grounds for agency action.”

Petrucelli v. Dep’t of Justice,

(D.D.C. 2014). To qualify for the

privilege, a document must be both predecisional and deliberative. Tax Analysts v. IRS,

(D.C. Cir. 1997). “To be pre-decisional, the communication (not surprisingly)

must have occurred before any final agency decision on the relevant matter.” Nat’l Sec. Archive

v. CIA,

(D.C. Cir. 2014). “The term ‘deliberative’ in this context means, in

essence, that the communication is intended to facilitate or assist development of the agency’s

final position on the relevant issue.”

“[E]ven if [a] document is predecisional at the time it is prepared, it can lose that status if

it is adopted, formally or informally, as the agency position on an issue or is used by the agency

in its dealings with the public.” Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980). However, when parties dispute whether an otherwise predecisional and

5 deliberative document has lost its privileged status through adoption or public use, the FOIA

requester—not the agency—bears the burden of persuasion on that issue. See McKinley v. Bd.

of Governors of Fed. Reserve Sys.,

, 63 n.14 (D.D.C. 2012) (plaintiff bears

the “burden to establish that predecisional records have been adopted as policy”); see also Elec.

Priv. Info. Ctr. v. Dep’t of Justice,

(D.D.C. 2008) (plaintiff must provide

more than “speculation” that a document was adopted). Accordingly, an agency relying on the

deliberative process privilege generally need not “affirmatively assert that the withheld material

was not formally or informally adopted.” McKinley,

n.14 (internal

quotation marks omitted).

ODNI Document 42 is an intra-agency email chain dated January 3, 2014. Koch Decl. ¶

52, ECF No. 57-3. According to a declaration signed by Gregory M. Koch, the Acting Director

of ODNI’s Information Management Division, “ODNI redacted two sentences in Document 42”

that contained “a suggestion regarding how the filling of an agency personnel position could

address intelligence issues related to the content of Plaintiff’s article.”

Mr. Koch explains

that “[t]he suggestion was made by a subordinate staffer to other personnel, including senior staff

(the Deputy DNI for Intelligence Integration and the Principal Deputy DNI).” Id. ¶ 53.

Sometime after the email was sent, the Government decided whether to follow the

recommendation made in the redacted sentences. Id. Koch further states that “[r]eleasing the

withheld information would cause harm to the Government’s deliberative decisionmaking

process by chilling candid conversations concerning personnel needs” and that “there is no

segregable, factual information in the withheld paragraph.” Id.

Applying the presumption that Koch’s declaration was prepared and submitted in good

faith, the Court finds that ODNI has sufficiently demonstrated that the redacted sentences in

6 Document 42 are protected by the deliberative process privilege. The Koch Declaration shows

that those two sentences are deliberative (because they made a recommendation as part of

internal agency deliberations about filling a personnel need) and predecisional (because they

were written by a junior staffer before the agency made any decision on the matter).

Gellman argues that ODNI’s explanation of the redaction is inadequate because “ODNI

has not specified whether the suggestion in this record was adopted by the agency” after it was

written. Pl. Mem. in Support of Renewed Cross-Mot. for Partial Summ. J. 8 (“Pl. Mem.”), ECF

No. 58-1. The Court disagrees. To reiterate, the plaintiff bears the burden to show evidence,

beyond mere “speculation,” that a document has been adopted and thus lost its predecisional

status. Elec. Priv. Info. Ctr.,

. Here, Gellman has provided no non-

speculative reason to believe the redacted language in ODNI Document 42 was later adopted as

agency policy.

Seeking to avoid this conclusion, Gellman points to a line of authority holding that when

an agency seeks to assert the deliberative process privilege on the basis that the withheld

document is a “draft,” the agency has an affirmative duty to “indicate whether the draft was

adopted formally or informally, as the agency position on an issue, or used by the agency in its

dealings with the public.” Heffernan v. Azar,

(D.D.C. 2018)

(cleaned up); see also Pl. Reply 3, ECF No. 62 (collecting cases). But these cases are not

inconsistent with the general rule that plaintiffs bear the burden to prove that a document has lost

its predecisional status through adoption. Rather, they reflect a judicial recognition that the label

“draft,” if accepted uncritically, poses a special danger of becoming an improper get-out-of-

FOIA-free card for the Government. Certainly, the process of writing a document on behalf of

an agency is often a deliberative one. But not all “draft” documents are “deliberative in nature”

7 when they are written. Arthur Andersen & Co. v. IRS,

(D.C. Cir. 1982).

Nor does calling a document a “draft” clarify whether it has lost its predecisional status through

subsequent adoption.

. Indeed, there must be countless adopted “drafts” in the

Government’s files; it is typical for a writing process to end with the decision to adopt an

existing draft as the final product, perhaps with some cosmetic finishing touches. Therefore, it

makes sense that when the Government asserts that a withheld record is a “draft,” it should

proactively answer the obvious follow-up question of whether the draft has been adopted. But it

does not follow that all assertions of the deliberative process privilege, including those that do

not relate to “draft” documents, must be accompanied by an affirmative statement of non-

adoption. See Heffernan,

(acknowledging that generally, “the agency

does not carry the burden of proving that each withheld document was not adopted formally or

informally” (internal quotation marks omitted)).

Finally, Gellman suggests that ODNI violated the Court’s prior order by failing to

provide “more detail” about Document 42 than it provided in the first round of summary

judgment briefing. Pl. Reply 2 (quoting Order 3, ECF No. 51). In fact, ODNI complied with the

Court’s instruction. The Koch Declaration adds the new information that the redacted

“suggestion was made by a subordinate staffer to other personnel, including senior staff (the

Deputy DNI for Intelligence Integration and the Principal Deputy DNI).” Koch Decl. ¶ 53. This

information helps the Court determine that the withheld language is predecisional and

deliberative in nature. See Schlefer v. United States,

(D.C. Cir. 1983) (“Intra-

agency memoranda from ‘subordinate’ to ‘superior’ on an agency ladder are likely to be more

‘deliberative’ in character than documents emanating from superior to subordinate.”).

8 The Government is therefore entitled to summary judgment as to its partial withholding

of ODNI Document 42.

B. OIP properly withheld drafts of statements to the news media.

Next, Gellman challenges OIP’s withholding of drafts of statements to the press. The

Court finds that the Government has adequately demonstrated that these draft statements are

protected by the deliberative process privilege.

In its prior opinion in this case, the Court held that “the Government must turn over any

predecisional statements to the extent they match precisely the agency’s actual statements to the

press.” Gellman,

, at *12 n.14. That is so because draft press statements

would lose their predecisional status if “adopted, formally or informally, as the agency position

on an issue.” Coastal States Gas Corp.,

.

As discussed above, plaintiffs generally bear the burden to show that a document has lost

its privileged status through adoption. But in the narrower context where an agency asserts the

deliberative process privilege over “draft” documents, courts have held, for good reason, that the

agency must “indicate whether the draft was adopted formally or informally, as the agency

position on an issue.” Heffernan,

(cleaned up).

Here, OIP has addressed the question of whether its draft press statements were later

adopted, albeit in a somewhat equivocal manner. Vanessa Brinkmann, Senior Counsel at OIP,

states in her fourth and latest declaration that “OIP has no indication that the draft statements that

continue to be withheld pursuant to the deliberative process privilege . . . were incorporated into

final statements, and the documents at issue here do not indicate that any of the drafts were

identical to a final version, beyond what has already been released to Plaintiff.” Fourth

9 Brinkmann Decl. ¶ 5, ECF No. 63-1. However, Ms. Brinkmann does not claim to know with

complete certainty whether each draft statement was ultimately adopted. She explains:

Beyond looking at the context found within the four corners of the records located in OIP’s search, it is simply not possible to track down the final statements provided to the press in every instance. OIP will sometimes check with relevant Department officials when the four corners of a record would seem to indicate that a statement is finalized or approved (such as the presence of “this statement is cleared” in an email). However, having no such leads in the records at issue in the present case and considering the age of the records, it was not practical or feasible for OIP to do that here. Where statements are made to the press orally, there is no repository of these “final statements” that OIP can refer back to. In limited circumstances, OIP may be able to speak with Department personnel or otherwise track down official public statements to determine if final statements were ultimately made to the press and whether they match an earlier written draft of the statements; however, due to the age of the records at issue in this case, and given personnel changes in the Department since these records were created, this is simply not feasible nor an efficient use of OIP’s limited resources and OIP must look to the four corners of the records themselves.

Id. ¶ 6. In other words, OIP relied on the “four corners” of the responsive records at issue—an

admittedly imperfect indicator—to determine that the withheld draft press statements do not

appear to have been incorporated into final statements.

Gellman argues that Brinkmann’s declaration shows a failure to comply with the Court’s

prior instruction to “turn over any predecisional statements to the extent they match precisely the

agency’s actual statements to the press.” Gellman,

, at *12 n.14. As Gellman

puts it, “OIP may not refuse to take steps to comply with the Court’s Order because the agency

unilaterally asserts that it does not think compliance is an ‘efficient’ use of its time.” Pl.

Surreply 2. Gellman has a point: the agency does not have absolute, unreviewable discretion

over how much effort it devotes to due diligence on the propriety of its own withholdings. On

the other hand, nothing in the case law, including this Court’s prior opinion, indicates that OIP

must spare no expense in researching whether any of its draft press statements were adopted as

final. The question is one of reason. As the D.C. Circuit has explained, an agency’s search for

10 records responsive to a FOIA request “need not be perfect, only adequate, and adequacy is

measured by the reasonableness of the effort in light of the specific request.” DiBacco v. U.S.

Army,

(D.C. Cir. 2015). It makes sense to apply similar logic in judging the

adequacy of an agency’s corollary search for evidence that might shed light on the exempt or

non-exempt status of responsive records.

After careful consideration, the Court is persuaded that OIP acted reasonably in

concluding that the withheld draft press statements remain privileged. To begin, the agency’s

overall approach to determining whether a draft statement has been adopted as final is a rational

one. As Ms. Brinkmann explains, there are legitimate reasons why OIP does not consider it

feasible to conduct an open-ended investigation of what ultimately became of every draft

statement—specifically, “[t]he age of the records at issue in this case,” “personnel changes in the

Department [of Justice] since these records were created,” and the lack of a “repository of [all]

‘final statements’ that OIP can refer back to.” Fourth Brinkmann Decl. ¶ 6. Therefore, it was

reasonable for the agency to look to “the four corners” of the withheld records and decide that, if

those records contained no “leads” suggesting adoption, no further inquiry was needed.

Gellman contends that, contrary to OIP’s assertion, the records themselves did contain

“leads” that should have prompted a more searching investigation. He cites several documents

in the record as examples of such leads. Pl. Surreply 2-3. Having examined the record, the

Court does not find that it contains any leads that rise to the level where OIP could not

reasonably fail to follow up on them. In fairness, one of the examples cited by Gellman does

present a close call. In an email thread from August 2013, agency officials workshop a statement

for the NSA to send to the Washington Post in response to an inquiry about an upcoming story.

Townsend Decl. Exh. 5, ECF No. 41-3. Eventually, public affairs official Andrew Ames writes:

11 “I will provide this for their use in responding.”

The following paragraph, presumably

consisting of the draft statement, is redacted in full. Understandably, Gellman believes that the

language preceding the redacted paragraph suggests that the draft statement was intended for the

NSA to use as a final statement. See Pl. Surreply 3. However, it does not appear that Mr. Ames

was the final decisionmaker on what the NSA would tell the Post, and the record does not

indicate whether the NSA ultimately adopted the redacted draft statement or otherwise used the

statement in its response. The Court thus cannot say it was unreasonable for OIP to conclude

that Mr. Ames’s email was a mere predecisional recommendation without obvious markers of

adoption.

The Government has carried its burden to justify its withholding of draft press statements.

C. OIP may withhold a February 2014 email in full under Exemption 5.

OIP fully withheld a February 2014 email by public affairs official Wyn Hornbuckle,

again claiming the deliberative process privilege. Second Marshall Decl. Exh. 2, ECF No. 58-3.

This withholding was proper.

According to the Fourth Brinkmann Declaration, the February 2014 email “contains

both a reaction to a news article and an articulated proposed future decision.” Fourth Brinkmann

Decl. ¶ 7. “More specifically,” Brinkmann explains, the email’s author “asks questions about a

particular aspect of the news article in the context of making suggestions and soliciting input on

how to respond to that part of the article.”

She further attests that “attempting to segregate

any of the information that is a reaction would necessarily reveal information that continues to be

withheld pursuant to Exemption 5 as an articulated proposed future decision.”

Gellman argues that OIP must segregate and release the portion of the email that merely

reacts to news coverage, since the Court previously held that “reactions to news articles without

12 an articulated future decision . . . are not properly withheld under the deliberative process

privilege.” Pl. Mem. 5-6 (quoting Gellman,

, at *13). This argument fails

because Brinkmann’s declaration, which is entitled to a presumption of good faith, provides a

reasonably clear explanation of why the reactive and deliberative portions of the email are

“inextricably intertwined” and cannot be segregated. Fourth Brinkmann Decl. ¶ 7; see also De

Sousa v. CIA,

(D.D.C. 2017) (agencies “met their segregability

burdens by submitting Vaughn indexes, in combination with the attestations of their respective

declarants that documents were reviewed ‘on a line-by-line basis’ and no further segregation

would be possible”). OIP thus properly justified its withholding of the February 2014 email.

D. OIP properly withheld some news clips as unresponsive to Gellman’s request.

The parties dispute whether OIP has violated FOIA and the Court’s prior order by

withholding some news clips within otherwise responsive emails as unresponsive. The Court

finds nothing improper about these withholdings.

The Court has previously addressed the Government’s withholding of non-responsive

news clips. As the Court explained, “DOJ officials receive daily compilations of abridged media

reports on relevant topics.” Gellman,

, at *5. The Government decided “to

define each article as a separate record” within those compilations, and the Court found that “the

Government met its burden to show that this definition of a record was reasonable.”

Therefore, the Court ruled that the Government need not produce individual news clips that are

unrelated to Gellman, even if those clips are contained in compilations that also include

responsive items.

Separately, the Court found that the Government must remove “any other

unexplained non-responsive redactions in records that are narrower than the email level.”

at

*5 n.7.

13 Relying on that latter quotation from the Court’s prior opinion, Gellman now argues that

OIP is improperly withholding non-responsive news clips within “single emails” that also

contain responsive ones. Pl. Reply 9. But these redactions are not “unexplained.” Gellman,

, at *5 n.7. The Government previously explained that it treats individual

news clips within compilation emails as separate records because each one “is distinct from the

next, each constituting a discrete package of information.” Second Brinkmann Decl. ¶ 20, ECF

No. 48-4. And the Court previously accepted this explanation, thus allowing the Government to

withhold non-responsive news clips regardless of what else is contained within the same email or

thread. Gellman,

, at *5. The Court adheres to its previous conclusion on this

issue. 2

E. OIP’s withholdings of briefing materials for DOJ leadership are adequately supported.

Finally, OIP asserted the deliberative process privilege to withhold briefing materials

written to help then-Attorney General Holder and other senior DOJ officials prepare for

conversations with journalists. Gellman raises two objections to these withholdings.

First, Gellman challenges the withholding of “purely factual material” in the draft and

final versions of the briefing documents. Pl. Mem. 8. He correctly observes that “[a]s a general

matter, purely factual information is not deliberative, and therefore cannot be withheld under the

deliberative process privilege.” Id. 9. “In some circumstances, however, the disclosure of even

purely factual material may so expose the deliberative process within an agency that it must be

2 The Court cannot fathom why Mr. Gellman seeks to put the Government to the task of processing and producing summaries of news stories by other reporters on topics other than those on which he reported in response to his already expansive request for any and all records mentioning his name.

14 deemed exempted” under Exemption 5. Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,

(D.C. Cir. 1977); see also Judicial Watch, Inc. v. Dep’t of Justice,

(D.C. Cir. 2005) (factual material may be withheld if “inextricably intertwined with the

deliberative material” (internal quotation marks omitted)).

In her declaration, Ms. Brinkmann asserts that the facts contained in the briefing

materials “cannot be segregated and released.” Fourth Brinkmann Decl. ¶ 8. She explains that

“[t]he briefing materials are meant to provide Department officials with relevant background

information ahead of specified events or interviews, or more generally to prepare them for

potential questions, so the official may use that selected background knowledge in the official’s

internal deliberation in deciding what official statements to provide to the press or others.”

The briefing materials do not represent a final decision on what information will be conveyed to

the press, but merely a set of recommendations and suggestions.

Therefore, Brinkmann

states, “[t]he very decision to include or exclude certain factual information can itself shed light

on the Department’s deliberative process, exposing the broader set of information chosen to

prepare Department officials for meetings and interviews with the press.”

This explanation suffices to justify OIP’s withholding of the factual material in the

briefing documents. Importantly, Brinkmann does not merely recite the legal truism that a

“decision to include or exclude certain factual information can itself shed light on the

Department’s deliberative process.”

Rather, she attests that the specific documents at issue

are “meant to provide Department officials with relevant background information . . . so the

official may use that selected background knowledge in the official’s internal deliberation” about

what to tell the press.

In other words, the very purpose of the briefing materials is to suggest

and recommend facts for DOJ leadership to highlight publicly. Those facts are therefore

15 “inextricably intertwined” with the deliberative aspects of the briefing materials. Judicial Watch,

Inc.,

.

Resisting this conclusion, Gellman contends that, “[t]aken to its logical extreme,” OIP’s

position “would justify the shielding of all factual material that is the subject of deliberation by

agency officials.” Pl. Mem. 11 (quoting Judicial Watch, Inc. v. Dep’t of State, No. CV 15-0688

(RC),

, at *10 (D.D.C. Feb. 2, 2017)). Not so. As Gellman observes, the D.C.

Circuit has made clear that a document written solely to make agency officials aware of certain

facts is not protected by the deliberative process privilege. See Playboy Enters., Inc. v. Dep’t of

Justice,

(D.C. Cir. 1982) (“Anyone making a report must of necessity select

the facts to be mentioned in it; but a report does not become a part of the deliberative process

merely because it contains only those facts which the person making the report thinks

material.”). However, the briefing materials at issue here do not merely provide factual

background to inform DOJ leadership’s understanding of subsequent deliberative suggestions

and recommendations. Rather, on Brinkmann’s telling, the facts contained in the briefing

materials are themselves deliberative; by including certain facts, the authors of the briefing

materials suggested or recommended that senior DOJ officials consider mentioning those facts to

the press. See Fourth Brinkmann Decl. ¶ 8.

Second, Gellman argues that the versions of briefing materials designated “final” should

be released in full because the record shows that these documents “were relied on in the Justice

Department’s dealings with the public.” Pl. Mem. 12; see also Pl. Surreply 5 (citing Defs.

Responses to Pl. Statement of Material Facts ¶¶ 129-30, ECF No. 60-1). In Gellman’s view, it

does not matter whether the Attorney General or other DOJ officials “expressly adopted the

document’s reasoning as [DOJ’s] own or published the document.” Pl. Surreply 5 (quoting

16 Fourth Brinkmann Decl. ¶ 9). The simple fact that the documents have been “used by the agency

in its dealings with the public,” Gellman argues, means those documents have lost their

predecisional status.

(quoting Arthur Andersen & Co.,

).

Gellman misconstrues the case law on waiver of the deliberative process privilege. A

document that makes recommendations to a senior agency official in anticipation of an

engagement with journalists does not lose its privileged status simply because the official uses

the document as intended and follows some of its recommendations. See Leopold v. ODNI,

, 278-79, 282 (D.D.C. 2020) (approving withholding of, inter alia, an email

containing deliberations that “contributed to the joint public statement which was eventually

released” and a draft version of an external communication that reflected “opinions and

revisions, some of which were accepted and some of which were denied”). Subjecting all such

deliberative documents to disclosure would interfere with the “ability of government employees

to be candid when deliberating how to respond to the press.” Gellman,

, at

*12. Therefore, courts in this district generally allow agencies to withhold their internal

deliberations about press statements, unless the agency subsequently made a public statement

that “replicated” the text of the deliberative document. Protect Democracy Project, Inc. v. U.S.

Dep’t of Def.,

(D.D.C. 2018) (Cooper, J.); see also Am. Ctr. for Law &

Justice v. Dep’t of Justice,

(D.D.C. 2018) (finding talking points

privileged but alluding to the possibility that “verbatim recitation” of talking points to the press

would waive the privilege). 3

3 This reasoning does not vitiate the D.C. Circuit’s admonition that the deliberative process privilege could be waived if a document was “used by the agency in its dealings with the public.” Arthur Andersen & Co.,

. Gellman suggests a broad, hyper-literal interpretation of that language, rendering non-privileged any deliberative document that is

17 Here, the record does not indicate that any official waived privilege over the briefing

materials by reciting them to the press. To the contrary, Brinkmann expressly asserts that “OIP

has been unable to identify any public statements matching to the briefing materials, or any

indication that the Department (or Mr. Holder) expressly adopted the document’s reasoning as its

own or published the document.” Fourth Brinkmann Decl. ¶ 9. Gellman suggests that the

Attorney General may have adopted parts of the briefing materials during an interview with

Gellman himself. See Pl. Mem. 13 (stating that Holder answered an interview question with “the

type of response that would be prepared in advance” and discussed a terrorism case that might

have been covered in the briefing materials). But this suggestion is speculative; Gellman’s

evidence falls far short of proving that Holder based his comments on the withheld briefing

materials or replicated any language from those materials. Unlike in Electronic Frontier

Foundation v. Department of Justice, on which Gellman relies, there is no “particularly high”

likelihood here that Holder waived privilege over the withheld documents.

(D.D.C. 2011).

In light of Brinkmann’s latest declaration and the presumption of good faith owed to it,

the Court concludes that OIP properly withheld the briefing materials.

somehow “used” in connection with a media interview or other public event. But the case law supports a more limited reading of the phrase. Courts have applied the waiver-by-public-use principle in cases where an agency publicly invoked or referred to the deliberative document itself. See Nat’l Council of La Raza v. Dep’t of Justice,

, 359 (2d Cir. 2005) (“The [Office of Legal Counsel] Memorandum was ‘used by the agency in its dealings with the public’ as the sole legal authority for the Department’s claim that its new policy had a basis in the law” (quoting Coastal States Gas Corp.,

)); Judicial Watch, Inc. v. U.S. Postal Serv.,

(D.D.C. 2004) (explaining that the rationale for requiring disclosure of documents “used by the agency in its dealings with the public” is that those documents have been “expos[ed] . . . to third parties”).

18 IV. Conclusion

For the foregoing reasons, the Court will grant Defendants’ Motion for Summary

Judgment and deny Plaintiff’s Cross-Motion for Partial Summary Judgment. A separate Order

shall accompany this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: February 22, 2021

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