UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CAUSE OF ACTION INSTITUTE,

Plaintiff, v. Civil Action No. 19-1915 (JEB) EXPORT-IMPORT BANK OF THE UNITED STATES,

Defendant.

MEMORANDUM OPINION

This case involves two Freedom of Information Act requests submitted by Plaintiff Cause

of Action Institute, a self-styled non-partisan government-oversight organization, to Defendant

Export-Import Bank of the United States, an independent agency tasked with fostering economic

growth by financing exports of various goods and services. In competing Motions for Summary

Judgment, the parties focus on the Bank’s redactions to several hundred pages of responsive

records, most of which it withheld under the deliberative-process privilege. Although the Court

had hoped to settle the propriety of all such withholdings in one fell swoop, an array of

unfortunate shortcomings in the Government’s current record renders swift resolution

impracticable. The Court, accordingly, delivers a mixed bag of results: it will affirm the

agency’s nondisclosure of some records, order the release of another group, and require it to go

back and further show its work should it wish to continue withholding still others.

I. Background

As the procedural history undergirding the present Motions is relatively straightforward,

the Court need only briefly summarize it before turning to the merits of the parties’ various

1 disputes. Plaintiff filed a FOIA request on September 20, 2018, for records reflecting

communications involving four senior EXIM officials regarding a series of individuals and

business entities. See ECF No. 1-1 (FOIA Request # 201800076F). It followed up that initial

entreaty with another on May 24, 2019, this time seeking additional records from agency

officials pursuant to a handful of new search terms. See ECF No. 1-3 (FOIA Request

# 201900047F). Although the Institute’s proposed keywords resist concise summary, it

describes its requests as seeking communications among EXIM employees during congressional

hearings for Kimberly Reed’s nomination to be the Bank’s President, as well as information

relating to certain Government Accountability Office oversight activities. See ECF No. 1

(Complaint), ¶ 1. After EXIM failed to immediately respond, Plaintiff brought this suit on June

26, 2019.

The agency eventually issued full and final responses to both requests, producing non-

exempt portions of a combined 783 responsive records totaling 7,633 pages between August

2019 and February 2020. See ECF No. 27-3 (Declaration of Lennell Jackson), ¶ 47; ECF No. 22

(3/3/20 Joint Status Rep.) at 1–2. In so doing, EXIM fully or partially redacted a number of

documents, largely citing FOIA Exemptions 5 and 6 as its bases for nondisclosure. Dissatisfied

with certain of those withholdings, Plaintiff informed the Bank of its intention to challenge them.

See ECF No. 28-4 (Declaration of Ryan P. Mulvey), ¶ 6; see also id. at ECF pp. 30–474

(disputed redacted records). That notice eventually prompted Defendant to move for summary

judgment, see ECF No. 27-2 (Def. MSJ), which the Institute opposed with its own Cross-Motion.

See ECF No. 28-1 (Pl. MSJ & Opp.).

Following the completion of briefing, the Court, in an effort to better understand the

withholdings at issue, requested EXIM to submit clean and redacted copies of all disputed

2 documents for in camera review. See ECF No. 35 (Notice). Having now reviewed such

submissions, the Court is ready to rule.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby,

, 247–48 (1986); Holcomb v. Powell,

(D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty Lobby,

; Holcomb,

. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris,

(2007); Holcomb,

. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion”

by “citing to particular parts of materials in the record” or “showing that the materials cited do

not establish the absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).

FOIA cases typically and appropriately are decided on motions for summary judgment.

See Brayton v. Office of the U.S. Trade Representative,

(D.C. Cir. 2011). In a

FOIA case, a court may grant summary judgment based solely on information provided in an

agency’s affidavits or declarations when they “describe the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information withheld logically falls within the

claimed exemption, and are not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Larson v. Dep’t of State,

(D.C. Cir. 2009)

(citation omitted). Such affidavits or declarations “are accorded a presumption of good faith,

which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of

3 other documents.’” SafeCard Servs., Inc. v. SEC,

(D.C. Cir. 1991) (quoting

Ground Saucer Watch, Inc. v. CIA,

(D.C. Cir. 1981)). “FOIA expressly

places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine

the matter de novo.’” U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press,

(1989) (quoting

(a)(4)(B)).

III. Analysis

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)

(citation omitted). The statute promotes these aims by providing that “each agency, upon any

request for records which (i) reasonably describes such records and (ii) is made in accordance

with published rules[,] . . . shall make the records promptly available to any person.”

(a)(3)(A). The Government need not, however, turn over requested information that falls

into one of nine statutorily created exemptions from FOIA’s broad directive. See

§ 552(b)(1)–(9). “While those exemptions must be narrowly construed, they still must be given

meaningful reach and application.” DiBacco v. U.S. Army,

(D.C. Cir. 2015)

(internal quotation marks and citations omitted). This Court can compel the release of any

records that do not satisfy the requirements of at least one exemption. See Reporters Comm.,

.

A “veritable avalanche of FOIA-related precedent” guides this Court’s determination of

whether the Government has carried its burden of establishing that a given exemption applies.

Ullah v. CIA,

, 182 (D.D.C. 2020). In order to show that certain information

is exempt from FOIA, “an agency may file ‘affidavits describing the material withheld and the

manner in which it falls within the exemption claimed.’” Bin Ali Jaber v. U.S. Dep’t of Def.,

4

(D.D.C. 2018) (quoting King v. U.S. Dep’t of Justice,

(D.C. Cir. 1987)). Ultimately, “when an agency seeks to withhold information, it must

provide a relatively detailed justification, specifically identifying the reasons why a particular

exemption is relevant.” Morley v. CIA,

(D.C. Cir. 2007) (quoting King,

). “[A]n agency’s justification for invoking a FOIA exemption is sufficient if it

appears ‘logical’ or ‘plausible.’” Larson,

(quoting Wolf v. CIA,

,

374–75 (D.C. Cir. 2007)).

Although Plaintiff does not contest the adequacy of EXIM’s search for responsive

records, its varied challenges to a bevy of the agency’s withholdings ensure no paucity of knots

for the Court to untangle. As the Bank predicates nearly all of its redactions on Exemption 5, the

Court will spend most of its time there. It then shifts to Exemption 6 before briefly concluding

with the agency’s claim that select portions of one record are not subject to FOIA at all. The

Court, thankfully, need not tackle EXIM’s separate argument that Exemption 4 independently

justifies certain overlapping withholdings for which it also cites Exemption 5, see Jackson Decl.,

¶ 26; as will soon become clear, the Court’s resolution of the application of the latter exemption

renders unnecessary any discussion of the former, at least for now. See Ctr. for Nat’l Sec.

Studies v. U.S. Dep’t of Justice,

(D.C. Cir. 2003) (explaining that court “need

not address [any] other exemptions invoked” for particular withholding justified by a single

exemption).

A. Exemption 5

Exemption 5 applies to “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). Withholdings are restricted to “those documents, and only those documents,

5 normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co.,

(1975); see also United States v. Weber Aircraft Corp.,

, 798–99 (1984).

The exemption encompasses three distinct components — namely, the deliberative-process

privilege (sometimes referred to as “executive privilege”), the attorney-client privilege, and the

attorney-work-product privilege. See Am. Immigr. Council v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2012). Here, the Court need only concern itself with the first, save

for a fleeting foray into the attorney-client privilege for a single record.

The deliberative-process privilege shields internal agency “advisory opinions,

recommendations and deliberations” in order to “protect[] the decision making processes of

government agencies.” Sears,

(citations and internal quotation marks omitted).

It “rests on the obvious realization that officials will not communicate candidly among

themselves if each remark is a potential item of discovery and front page news.” Dep’t of

Interior v. Klamath Water Users Protective Ass’n,

, 8–9 (2001). In other words, “if

agencies were forced to ‘operate in a fishbowl,’” the “quality of administrative decision-making

would be seriously undermined . . . because the full and frank exchange of ideas on legal or

policy matters would be impossible.” Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,

(D.C. Cir. 1977).

To qualify under the privilege, a record must meet two requirements. First, it must be

predecisional — i.e., “generated before the adoption of an agency policy.” Judicial Watch, Inc.

v. U.S. Dep’t of Def.,

(D.C. Cir. 2017) (citation omitted). Second, a record

must be deliberative, meaning that it “reflect[s] the give-and-take of the consultative process.”

(citation omitted). In this way, Exemption 5 focuses on documents containing information

6 that composes “part of a process by which governmental decisions and policies are formulated.”

Sears,

(citation omitted).

Additionally, in the context of Exemption 5, “an agency may withhold information —

even if it falls within the four corners of the exemption — ‘only if . . . the agency reasonably

foresees that disclosure would harm an interest protected by’ [that] exemption.” Rosenberg v.

U.S. Dep’t of Def.,

, 256 (D.D.C. 2020) (quoting

(a)(8)(A)(i)(I)); see also S. Rep. No. 114-4 at 8 (2015). To satisfy this standard, an agency

must “identify specific harms to the relevant protected interests that it can reasonably foresee

would actually ensue from disclosure of the withheld materials,” and it must “connect [such]

harms in a meaningful way to the information withheld.” Ctr. for Investigative Reporting v. U.S.

Customs & Border Prot.,

, 106 (D.D.C. 2019) (cleaned up) (citation omitted).

While “boilerplate” articulations of harm are insufficient,

(citation omitted), the government

need not “identify harm likely to result from disclosure of each of its Exemption 5

withholdings.” Rosenberg v. U.S. Dep’t of Def.,

(D.D.C. 2018). Rather,

it “may take a categorical approach” and “group together like records,” explaining “the

foreseeable harm of disclosure for each category.”

.

According to Defendant, the deliberative-process privilege protects the overwhelming

majority of disputed documents from disclosure. Plaintiff, unsurprisingly, disagrees. Guided by

the agency’s declaration, its Vaughn Index, and in camera review, the Court must determine

whether the records at issue qualify as inter- or intra-agency materials, may be considered both

predecisional and deliberative, and will result in foreseeable harm if disclosed. For ease of

analysis, the Court sorts the documents withheld under this exemption into the following broad

categories: 1) internal EXIM documents; 2) communications regarding political nominees; and

7 3) productions and responses to the Government Accountability Office. (When citing individual

pages, the Court will follow Plaintiff’s lead and refer to the records by their production set and

page number — i.e., 201800076F0007 — which generally tracks the agency’s pagination in its

Vaughn Index and in camera submission. See Mulvey Decl. at ECF pp. 30–474; ECF No. 27-4

(Vaughn Index) at 1–4.

1. Internal EXIM Documents

EXIM withheld an array of internal agency materials from its production, which, at the

risk of excessive sub-categorization, both parties generally describe as follows: portfolio risk-

management reports, cybersecurity recommendations, senior staff reports, and several

miscellaneous documents. See Def. MSJ at 13–16; Pl. MSJ & Opp. at 21–22, 24, 26; Vaughn

Index at 1–3. Plaintiff does not dispute that all of these documents satisfy Exemption 5’s

threshold requirement of “inter-agency or intra-agency memorandums or letters.”

(b)(5). The parties’ disagreement instead turns on whether they are both predecisional and

deliberative, as well as whether the agency has established the requisite foreseeable harm from

their potential disclosure. Because that analysis differs according to the precise record at issue,

the Court will consider each of the above categories seriatim.

a. Portfolio Risk-Management Reports

Start with EXIM’s portfolio risk-management reports. The Bank withheld two of these

documents, see Vaughn Index at 1, which contain “staff analysis” of numerous Bank transactions

that “have developed credit issues since they were approved.” Jackson Decl., ¶ 38a. The Court

finds that both were properly reserved.

As discussed above, in order for a record to qualify as “predecisional,” it must predate a

particular agency decision or policy. Judicial Watch,

(citation omitted). An

8 agency may properly make that showing by “pinpoint[ing]” such later “decision or policy to

which the document contributed.” Senate of the Commonwealth of P.R. v. U.S. Dep’t of Justice,

(D.C. Cir. 1987) (citation omitted). There is more than one way, however, to

skin this cat. Because not all deliberative discussions culminate in a “single, discrete decision,”

an agency may also satisfy its burden by “identifying the decisionmaking process” in which the

record played a role. Access Reports v. Dep’t of Justice,

(D.C. Cir. 1991);

see also Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys.,

, 135–36 (D.D.C. 2011) (“[E]ven if an internal discussion does not lead to the

adoption of a specific government policy, its protection under Exemption 5 is not foreclosed as

long as the document was generated as part of a definable decision-making process.”).

Here, Defendant has satisfactorily established the “decisionmaking process” to which the

reports contribute. Access Reports,

. Marshaling both quantitative and

qualitative data, and addressing the Bank’s vulnerable transactions both individually and

collectively, the reports examine in considerable detail various “risks presented by these

transactions,” identify potential “remedies to address” such risks, and assess the likelihood of full

and partial recovery. See Jackson Decl., ¶ 38a. EXIM’s Enterprise Risk Committee (ERC), in

turn, uses these reports as a key source of information as it engages in the ongoing work of

monitoring credit risks across scores of transactions and minimizing exposure when appropriate.

See Def. MSJ at 13; ECF No. 31 (Def. Reply & Opp.) at 15. The Bank’s account of the relevant

decisionmaking process in which the documents play a role plainly establishes their

predecisional nature. See Access Reports,

(document predecisional where it

contributed to agency’s “study of how to shepherd [a] bill through Congress”); Leopold v. CIA,

, 19–20 (D.D.C. 2015) (documents predecisional where they “were created to

9 aid senior agency officials’ deliberations about how to respond to” various issues as part of

ongoing, multi-year process).

In response, Plaintiff musters only that these reports “may no longer [be] predecisional to

the extent [EXIM] decided to finalize action and rely on [the] agency staff’s recommendations

and analysis.” Pl. MSJ & Opp. at 21. It is true that predecisional documents “can lose that status

if [they are] adopted, formally or informally, as the agency position on an issue.” Coastal States

Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980). “To adopt a deliberative

document,” however, “it is not enough for an agency to make vague or equivocal statements

implying that a position presented in a deliberative document has merit.” Judicial Watch,

. Nor can an agency simply reference a report’s conclusions. Access Reports,

. Instead, “the agency must make an ‘express[]’ choice to use a deliberative

document as a source of agency guidance.” Judicial Watch,

(quoting Sears,

) (emphasis and alteration in original).

No such adoption occurred here. As EXIM explains, the reports do not become the

agency’s official or unofficial position on a particular issue; rather, the ERC uses them “on a

continual basis to analyze and monitor the risks of different loans, debt or loan portfolios, and

other financial transactions that have developed credit issues since they were approved.” Def.

Reply & Opp. at 15. Put differently, rather than “reflect[ing] the [agency’s] policy ‘itself,’” the

reports simply “reflect[] the ideas, theories, or suggestions that ‘go into the making of’ policy.”

Canning v. U.S. Dep’t of State,

(D.D.C. 2018) (quoting Elec. Frontier

Found. v. U.S. Dep’t of Justice,

(D.C. Cir. 2014)). Under these circumstances, the

privilege is fully applicable. See

(explaining that privilege “protect[s] ‘all papers which

reflect the agency’s group thinking in the process of working out its policy’ . . . — even if

10 portions of that ‘thinking’ are ultimately persuasive” to final decisionmakers) (quoting Elec.

Frontier Found.,

); Am. Ctr. for Law & Justice v. U.S. Dep’t of Justice,

(D.D.C. 2019) (holding that Attorney General’s “ultimate reliance on the

proposals from her subordinates . . . d[id] not amount to such an express and unequivocal

choice” to use document as source of agency guidance, as required for adoption). Contrary to

Plaintiff’s unsupported suggestions, see Pl. MSJ & Opp. at 21, moreover, the mere fact that the

reports are at times attached to ERC meeting minutes does nothing to alter that conclusion.

The deliberative nature of the reports can be established far more quickly. Their “case by

case” analyses of “each troubled transaction” distill “a range of opinions . . . widely discussed at

various levels of the agency,” Jackson Decl., ¶ 38a, thus plainly “reflect[ing] the give-and-take of

the consultative process.” Judicial Watch,

(citation omitted); see also Sears,

(explaining that privilege focuses on documents that compose “part of a process by

which governmental decisions and policies are formulated”) (citation and internal quotation

marks omitted). The Institute essentially makes no argument to the contrary, and the Court’s in

camera review confirms the reports’ deliberative character.

One point bears further comment. Although some of the discussion in the reports may be

characterized as “factual,” the agency properly withheld such material, as well. As this Court

has previously explained:

While it is true that “[p]urely factual material usually cannot be withheld under Exemption 5,” it can be where “it reflects an ‘exercise of discretion and judgment calls’” and where its exposure would enable the public to probe an agency’s deliberative processes. Ancient Coin Collectors Guild v. Dep’t of State,

(D.C. Cir. 2011) (quoting Mapother v. Dep’t of Justice,

(D.C. Cir. 1993)). This is because “the privilege serves to protect the deliberative process itself, not merely documents containing deliberative material.”

. “[T]he legitimacy of withholding” thus “does not turn on whether the material is purely

11 factual in nature or whether it is already in the public domain, but rather on whether the selection or organization of facts is part of an agency’s deliberative process.”

(citing Montrose Chem. Corp. of Cal. v. Train,

(D.C. Cir. 1974)).

Leopold,

. Here, the factual material contained in the reports reflects their

drafters’ discretionary judgment regarding the particular information that would be relevant to

the ERC’s decisionmaking process. Especially where such material was “assembled . . . for

purely internal deliberative purposes,” Elec. Privacy Info. Ctr. v. Transp. Sec. Admin.,

(D.D.C. 2013), its disclosure would enable onlookers to “prob[e] the

[agency’s] decision-making process itself.” Montrose Chem.,

. Since that is

precisely what the privilege safeguards, it falls under the umbrella of Exemption 5.

In addition, the Bank easily carries its burden to show reasonably foreseeable harm from

disclosure of the reports. As its declarant explains, EXIM’s ability to manage complex, evolving

transactions depends on “agency staff be[ing] able to openly both discuss and debate analysis of

the facts, and proposed action plans. Publication of [the reports] would have a direct and

deleterious impact on staff’s ability to openly discuss their views of the facts and their ideas on

plans to address the recovery of the maximum amount of money for the U.S. taxpayer in each

matter.” Jackson Decl., ¶ 38a. “Such chilling of candid advice is exactly what the privilege

seeks to prevent.” Machado Amadis v. U.S. Dep’t of State,

, 371 (D.C. Cir. 2020);

see also Rosenberg, 442 F. Supp. 3d at 260–61 (finding agency adequately established

foreseeable harm where declarant stated disclosure would inhibit “frank discussions” and impair

efforts to furnish leadership with “the full and necessary understanding” required for effective

decisionmaking). The Bank also notes the distinct risk that various parties to its transactions

might use the report “to find out the thinking underlying EXIM’s positions,” which would

“undermine EXIM’s negotiating position.” Jackson Decl., ¶ 38a. In these circumstances, the

12 harm from disclosure is not only reasonably foreseeable, but indeed manifestly evident. The

reports, accordingly, were properly withheld.

b. Cybersecurity Documents

The Court cannot yet say the same for this next category of withholdings, which

comprises three documents totaling 24 pages: two internal EXIM cybersecurity-related

memoranda and one “cybersecurity dashboard.” Vaughn Index at 1–2; Mulvey Decl. at

201800076F0057–61. This is because the Bank’s submissions — at least as they currently stand

— are insufficient to establish either the predecisional or deliberative character of these

documents.

As an initial matter, the agency’s Vaughn Index omits all mention of one of the two

withheld memoranda. The Court only became privy to its existence by way of in camera review,

finding it tucked within a different record marked for other purposes. See Mulvey Decl. at

201800076F0057–61 (memorandum redacted in full). It need scarcely be said that the Court

cannot affirm Defendant’s withholding of a record it never even acknowledges. Indeed, it is

painful enough for the Court to laboriously pore over all of these in camera records even without

errors. As the D.C. Circuit has emphasized, “There is no excuse for submitting a Vaughn index

that contains errors, even minor ones. We expect agencies to ensure that their submissions in

FOIA cases are absolutely accurate.” Schiller v. NLRB,

(D.C. Cir. 1992),

abrogated on other grounds, Milner v. Dep’t of Navy,

(2011).

As for the remaining two documents, the agency’s treatment of them is far too cursory.

All its declarant says is that they “present analysis by EXIM’s Chief Information Officer to the

Enterprise Risk Committee of issues related to cybersecurity risks EXIM faces.” Jackson Decl.,

¶ 38b. Notably lacking from this ephemeral account, as well as Defendant’s accompanying

13 briefing, is any explanation of the relationship between the CIO and ERC, their respective

responsibilities for formulating cybersecurity policy, and — most critically — the documents’

role in any such agency decisional process. See SafeCard, 926 F.2d at 1204 (explaining that, to

qualify for privilege, agency needed to explain “how decisions . . . are reached; the role that [the

documents] play in such decisions; [and] the manner in which such decisions are memorialized

and explained”). It will not do, moreover, to simply lump the memorandum and “cybersecurity

dashboard” together without differentiation, as even a brief glance at the unredacted documents

suggests that they likely play distinct roles in any (undefined) decisionmaking process. Finally,

although the memorandum suggests that the ERC either accepts or rejects the CIO’s risk-

mitigation recommendations, Defendant never addresses the potential for agency “adoption” of

those proposals, such that some of the document’s contents might lose their predecisional status.

To be sure, it may well be the case that these documents are predecisional and

deliberative, and that their disclosure “would expose [EXIM’s] decisionmaking process in such a

way as to discourage candid discussion within the agency and thereby undermine [its] ability to

perform its functions.” Dudman Communications Corp. v. Dep’t of Air Force,

(D.C. Cir. 1987). The Court’s in camera review reveals that they contain sensitive

information — namely, the CIO’s description of numerous cybersecurity risks, his assessment of

their potential impact on the Bank’s activities, and his recommendations for how the agency

might mitigate them while concurrently accounting for operational efficiency. They also survey

trends in digital threats, evaluate the state of EXIM’s defenses, and outline areas for continued

improvement. As such internal analysis and counsel are hallmarks of records to which the

deliberative-process privilege often applies, the Court will provide Defendant another

opportunity to explain “with reasonably specific detail” how the information at hand “logically

14 falls within” Exemption 5. Elec. Frontier Found.,

(quoting Miller v. Casey,

(D.C. Cir. 1984)); see also Citizens for Responsibility & Ethics in Wash. v. U.S.

Dep’t of Justice,

, 18–19, 24 (D.D.C. 2013) (requiring agency to provide more

robust explanations for withholdings in comparable circumstances). It expects that any renewed

effort to do so will account for the various shortcomings identified here.

c. Senior Staff Reports

Moving right along, the parties next clash over Defendant’s partial withholding of four

internal senior staff reports, along with one duplicate report. See Vaughn Index at 2–3. These

are, as their name suggests, weekly reports compiling updates from various groups and teams

across EXIM’s many divisions for the benefit of the agency’s upper-level staff. See Jackson

Decl., ¶ 38d. The recurring digests — which traverse from legislative and regulatory strategy, to

fraud-risk assessments, to more mundane matters such as upcoming event schedules — contain

“staff analysis and recommendations,” thus enabling senior management “to see both what has

happened in other groups in the agency,” as well as “what is proposed to happen.”

As a general matter, Defendant starts off on the right foot, as it is well established that

“[t]he identity of the parties” to the document at issue “is important” when assessing

deliberative-process claims. Coastal States,

. More specifically, “a document

from a subordinate to a superior official is more likely” to be both predecisional and deliberative

than one moving in the opposite direction. Id.; Schlefer v. United States,

(D.C. Cir. 1983); see also Leopold, 89 F. Supp. 3d at 20–21 (finding documents predecisional in

part because they “were written by lower-level employees for use by senior [agency] officials”);

Abtew v. U.S. Dep’t of Homeland Sec.,

(D.C. Cir. 2015) (“A

recommendation to a supervisor on a matter pending before the supervisor is a classic example

15 of a deliberative document.”). The senior staff reports, however, do not fit squarely within this

framework, as the Court’s in camera review reveals that most of the material therein cannot be

characterized as “evaluations” or “analysis . . . prepared for senior-level review and

decisionmaking.” Machado Amadis, 971 F.3d at 370 (citation omitted). At the same time, the

documents are plainly written by subordinates for the benefit of superiors, and select portions

contain internal staff discussion that falls within the confines of the privilege.

For instance, the reports include information of the type withheld in the portfolio risk-

management reports regarding EXIM’s ongoing transactions; these selections reflect the

agency’s continuing monitoring of, decisionmaking process surrounding, and distilled analysis

regarding its many financing ventures. See, e.g., Mulvey Decl. at 201800076F1067; see also

Jackson Decl., ¶ 38d (explaining that “the risks and concerns of publicizing such information

would be the same” as for portfolio risk-management reports). Other sections convey similar

details concerning the Bank’s rolling efforts to monitor, manage, and conduct due diligence on

certain of its existing, pending, and prospective transactions and broader portfolio alike. See,

e.g., Mulvey Decl. at 201800076F1058–59. In addition, the reports relay aspects of the agency’s

continued endeavor to update its credit-risk policy and anti-fraud controls, see, e.g., id. at

201800076F1069–70, 201800076F1080, as well as internal analyses regarding financing risks

triggered by developments in various foreign countries. See, e.g., id. at 201800076F1070.

These discussions are both predecisional and deliberative. Disclosure, moreover, “would cause

agency staff to be much more cautious in staff analysis and proposals regarding a wide array of

issues the agency confronts on a regular basis.” Jackson Decl., ¶ 38d; see also Machado Amadis,

971 F.3d at 371 (foreseeable-harm requirement satisfied where agency stated that disclosure

would “chill future internal discussions”).

16 On the other hand, much material in the reports hardly qualifies as “advisory opinions,

recommendations and deliberations,” nondisclosure of which is necessary to “protect[] the

decision making processes of government agencies.” Sears,

(citations omitted).

That is, considerable portions — which Defendant never even acknowledges — play no

discernible role in any “continuing process of agency decision-making,” Elec. Privacy Info. Ctr.

v. Dep’t of Homeland Sec.,

(D.D.C. 2005), let alone “reflect[] the give-

and-take of the consultative process.” Judicial Watch,

(alteration in original)

(citation omitted). Take, for example, a one-page graphic, redacted in full, containing digital

metrics tracking engagement with EXIM’s website and social-media pages. See Mulvey Decl. at

201800076F1062. It does not appear that these figures were compiled “to aid future policy-

oriented decisions,” Leopold,

, and they certainly are not deliberative.

Similarly, consider several fully withheld tables containing high-level data pertaining to small

businesses, as well as single- and multi-buyer transactions. See Mulvey Decl. at

201800076F1072–74. The Government never attempts to establish any link between these

figures and ongoing policy formation; the charts simply relate recent statistical snapshots that

seemingly function as factual updates devoid of any relation to a consultative process. Related

difficulties surround the Bank’s redactions of other selections, too. The following are examples

that fall outside the scope of the deliberative-process privilege:

• a list of recent media outreach and marketing efforts,

at 201800076F1060;

• registers of confirmed speaking events and upcoming conferences, including those featuring EXIM personnel,

at 201800076F1063, 201800076F1075, 201800076F1079; and

• high-level statistics regarding public financial disclosure reporting forms and unidentified data-analytics processing,

at 201800076F1077, 201800076F1082.

17 Instead of discussing (or even alluding to) these parts of the senior staff reports,

Defendant simply approaches the documents from a generic, 30,000-foot view while ever so

briefly narrowing in on a few unrepresentative portions, some of which do clear the Exemption 5

bar. See Jackson Decl., ¶ 38d; Def. MSJ at 15; Def. Reply & Opp. at 17–18. That will not do,

particularly given the wide variety of content contained in the lengthy reports. See Am. Immigr.

Council v. U.S. Dep’t of Homeland Sec.,

(D.D.C. 2013) (rejecting

agency’s “vague and categorical” descriptions of documents as insufficient). After all, even if

some fragments of an agency record may be properly withheld, the government must turn over

other portions that do not qualify for an exemption and are reasonably segregable. See Roth v.

U.S. Dep’t of Justice,

(D.C. Cir. 2011). It is not this Court’s place,

moreover, to hypothesize forms of upper-level decisionmaking that the reports are intended to

serve, especially when EXIM does not itself identify any. See Jackson Decl., ¶ 38d (stating only

that “primary purpose” of reports is for senior staff “to see both what has happened in other

groups in the agency and what is proposed to happen”). As a reminder, the agency bears the

burden of establishing that the withheld information is both predecisional and deliberative, such

that it comes within the privilege. Access Reports,

. It has not discharged that

obligation with respect to the excerpts examined here.

In sum, while certain of Defendant’s redactions within the reports were appropriate,

much of the withheld material does not qualify for protection under Exemption 5 and must be

released. Should EXIM desire to continue withholding particular pieces of the reports not

explicitly discussed here — see, e.g., Mulvey Decl. at 201800076F1055–57, 201800076F1075,

201800076F1081–82 — it must more fully justify its reasons for nondisclosure in a

supplemental submission following a renewed review of the documents. Finally, the Court notes

18 that the above-cited pages derive only from the first of five senior status reports at issue in this

litigation. See Vaughn Index at 2–3. Since the reports are substantially similar (and at times

nearly indistinguishable) in form, length, and content, the Court expects that the Government

will have little difficulty applying the determinations herein to the latter four reports, releasing

and withholding material in accordance with this Opinion.

d. Miscellaneous Documents

The Court now turns to the potpourri of additional internal documents Defendant

withheld pursuant to Exemption 5: 1) ERC meeting minutes and agendas, as well as an

associated email; 2) slides from an April 2018 presentation; and 3) one June 2019 email authored

by EXIM’s Assistant General Counsel. It will take each in turn. (For housekeeping purposes,

the Court notes that Plaintiff no longer contests the Bank’s partial redaction of the emails

contained in Rows 34 and 36–39 of its Vaughn Index. See Pl. MSJ & Opp. at 26 n.12.)

i. Meeting Documents

EXIM redacted essentially in full three sets of ERC meeting minutes, two ERC meeting

agendas, and a single-page email listing various documents to be discussed at one such meeting.

See Vaughn Index at 1. There are two problems here, each troubling in its own right. First,

reprising its earlier oversight, Defendant neglects to include in its Vaughn Index one of the three

sets of meeting minutes, as well as one of the two meeting agendas. The Court, once again, only

discovered their existence during its in camera review. See Mulvey Decl. at 201800076F0055–

56, 201800076F0068–69. Such repeated carelessness only undermines the Court’s confidence in

the attention the Government has devoted to its responsibilities here.

The second problem is perhaps worse: notwithstanding its near-complete withholdings,

Defendant in its submissions completely ignores all six records, declining even to mention them

19 in its declaration and briefing. That lapse is all the more glaring where Plaintiff explicitly

flagged the deficiency in its Cross-Motion. See Pl. MSJ & Opp. at 21 n.10, 22. It is especially

puzzling, moreover, where even a brief in camera review suggests that several of the meeting

minutes contain presumably sensitive information of the very type EXIM strove to withhold in

the aforementioned portfolio risk-management reports.

Notwithstanding the Bank’s sloppiness, given the potential sensitivity of the material, the

Court will permit EXIM to renew its submissions if it does in fact seek to defend the

withholdings identified here. It nonetheless cautions Defendant that its current redactions appear

overbroad. It is doubtful, for instance, that dates, attendees, titles, and subject-matter

descriptions in meeting minutes and agendas properly qualify as predecisional and deliberative.

See Ctr. for Pub. Integrity v. U.S. Dep’t of Commerce,

, 120–21 (D.D.C.

2019) (ordering disclosure of such information); Judicial Watch, Inc. v. U.S. Dep’t of Treasury,

(D.D.C. 2011) (similar). The Court expects that the Bank will revisit its

redactions with such guidance in mind, releasing to Plaintiff reasonably segregable information

where appropriate.

ii. Presentation Slides

Next record, similar story. The agency’s Vaughn Index describes these presentation

slides as follows: “Power Point – Intersection of Export Finance and National Defense Strategy”

authored by the “Office of COO” for the “CEO and DOD.” Vaughn Index at 2. That paltry,

relatively unhelpful summation, unfortunately, is all Defendant has to say on the subject. Its

various submissions offer no additional detail on the context of the presentation, its intended

purpose, or its role in any agency (or broader governmental) decisionmaking process. Indeed, its

20 briefing does not even discuss the slideshow. The record before the Court, accordingly, is

simply insufficient to support any conclusion that the redacted content was properly withheld.

Once again, however, given the nature of the information in the slide deck, the Court will

provide the Government another opportunity to more fully explain how these documents come

within Exemption 5 (or Exemption 4, should EXIM wish to pursue it, as several markings on the

redacted slides suggest). Although the Bank has released certain portions of the presentation,

at 5 n.2, the Court expects that it will focus on the select pages it continues to redact. See

Mulvey Decl. at 201800076F0508–14.

iii. Assistant General Counsel Email

There is no need for Defendant to go back to the drawing board on the final record, an

internal email from an EXIM Assistant General Counsel to the agency’s Chief Risk Officer

focusing on “questions regarding [the] [GAO] report.” Vaughn Index at 4. For context, that

report followed a GAO audit of the Bank’s anti-fraud controls, which will feature prominently

later in this Opinion. The Court’s independent examination confirms that the withheld email

does in fact pertain to the GAO report and, more pertinently, offers details potentially informing

how senior management might “respond to inquiries regarding” such report. See ECF No. 32-1

(Supplemental Declaration of Lennell Jackson), ¶ 5; see also Mulvey Decl. at

201900047F262Interim (email subject line suggesting that article published by Plaintiff in

response to GAO report prompted internal discussion).

It is true that the deliberative-process privilege often “cover[s] . . . discussions about

press coverage of existing agency policies,” as well as “determinations about how to respond to

statements or inquiries made by public interest groups.” Bloche v. Dep’t of Def.,

, 51–52 (D.D.C. 2019). Here, however, while the agency’s submissions establish that the

21 email at hand is predecisional, it cannot satisfy the deliberative prong. The Court’s review

reveals that the message contains no “advisory opinions, recommendations[, or] deliberations”

regarding the agency process at issue. Sears,

(citation omitted); see also Public

Citizen, Inc. v. Off. of Mgmt. & Budget,

(D.C. Cir. 2010) (“Only those

portions of a predecisional document that reflect the give and take of the deliberative process

may be withheld.”). The redacted material features nothing “that can even be construed as a

personal opinion of an agency official.” Cause of Action Inst. v. U.S. Dep’t of Justice,

(D.D.C. 2018). Indeed, the email “offers no commentary whatsoever,” Public

Citizen,

, instead simply providing a several-sentence recounting of factual

information from an already public report. Neither would disclosure reveal “the deliberative

process itself” so as to “expose an agency’s policy deliberations to unwarranted scrutiny.”

Mapother, 3 F.3d at 1537–38. As this Court has previously explained in a similar situation, the

email does not “distill[] voluminous records into factual summaries for higher-ups,” “reveal the

outcome of the deliberative process,” or offer “insight into the agency’s position or anything else

that ‘clearly involves the formulation or exercise of . . . policy-oriented judgment or the process

by which policy is formulated.’” Cause of Action,

(cleaned up) (quoting

Mapother,

). In these circumstances, the deliberative-process privilege offers no

shelter.

EXIM alternatively seeks to withhold the email under the attorney-client privilege,

which, the attentive reader will recall, provides an independent ground on which a record may be

reserved under Exemption 5. Am. Immigr. Council,

. This effort

encounters its own problems.

22 This privilege extends to, among other things, communications from attorneys to their

clients containing confidential information supplied by the client. See Tax Analysts v. IRS,

(D.C. Cir. 1997). As relevant here, however, the privilege “protects only those

disclosures necessary to obtain informed legal advice.” Coastal States, 617 F.2d at 862–63

(quoting Fisher v. United States,

(1976)); see also In re Kellogg Brown &

Root, Inc.,

, 759–60 (D.C. Cir. 2014) (explaining that obtaining or providing legal

advice must be a “primary purpose of the communication”). That critical element is lacking

when it comes to the email in question. Nowhere does the message — which, as explained

above, accomplishes the ministerial task of tracking down and relaying information from a

public report — purport to impart, or respond to a request for, legal advice. Nor does the agency

ever so contend, despite its burden to prove this element. See Cause of Action,

. The Court could go on — for instance, Defendant never establishes, as similarly

required, that the underlying information was kept confidential. See Am. Immigr. Council,

. This record must see the light of day.

2. Communications Regarding Political Nominees

The next category of Exemption 5 withholdings is relatively narrow in scope, comprising

just a single record spanning ten pages. See Vaughn Index at 2; Mulvey Decl. at

201800076F0358–67. In reality, that single record is actually five distinct two-page documents,

each a different “strategic plan[]” aimed at securing a particular individual’s Senate confirmation

to a position at EXIM. See Mulvey Decl. at 201800076F0357 (email attaching five reports and

naming nominees). Having authored these “planning documents,” Bank officials passed them

along to the Executive Office of the President (EOP), intending for them to serve as a source of

23 guidance for administration officials throughout the relevant confirmation processes. See

Jackson Decl., ¶ 38c; Def. MSJ at 14.

Plaintiff contests the agency’s complete withholding of these ten pages. In so doing, it

makes two arguments: 1) the documents are not “inter-agency or intra-agency memorandums or

letters,” as required to qualify for Exemption 5 protection in the first place; and 2) even if they

were, they do not satisfy the elements of deliberative process. Disagreeing on both counts, the

Court finds that EXIM properly withheld the strategic plans.

a. Inter- or Intra-Agency Record

Regardless of whether a document is predecisional and deliberative, it may not be

withheld under Exemption 5 unless it is an “inter-agency or intra-agency” record. See

(b)(5); Klamath Water Users,

. Because that threshold requirement has

“independent vitality,” Klamath Water Users,

, the Court begins there. Binding

D.C. Circuit precedent confirms that the agency clears that bar.

FOIA, as a reminder, requires an “agency” to make “agency records” available upon

request. See

(a)(3). Not all government entities, however, are “agencies” subject

to FOIA. As relevant here, “Congress did not intend the word ‘agency’ to include the President,

his ‘immediate personal staff[,] or units in the Executive Office whose sole function is to advise

and assist the President.’” Judicial Watch, Inc. v. U.S. Secret Serv.,

(D.C. Cir.

2013) (alteration in original) (quoting Kissinger v. Reporters Comm. for Freedom of the Press,

(1980)). Although Defendant does not provide much detail regarding the

identities of the recipients of the strategic plans, it explains that the plans were transmitted to a

unit within the Executive Office “whose sole function is to advise and assist the President.” Def.

Reply & Opp. at 6–7. The Court therefore assumes, as Plaintiff also contends, that EXIM sent

24 the records to an entity that does not qualify as an agency under FOIA — namely, a unit of

advisors to the President.

The game is not up, however. The D.C. Circuit has squarely held that documents

exchanged between an agency and a non-agency entity within the Executive Branch may still

qualify for protection under Exemption 5. In Judicial Watch, Inc. v. Department of Energy

(Judicial Watch I),

(D.C. Cir. 2005), the Court of Appeals considered certain

agency communications with a non-agency government entity — there, the National Energy

Policy Development Group, a body established for the sole purpose of advising the President.

at 129–31. It concluded, over the requester’s objection, that those records were “inter-agency

or intra-agency” communications, even though NEPDG and the President were not “agencies”

within the meaning of FOIA, and even though the records reflected the deliberations of NEPDG.

As the Court made clear, “Neither Exemption 5 nor the cases interpreting it distinguish

between the decision-making activities of an ‘agency’ subject to the FOIA and those of the

President and his staff, who are not subject to the FOIA.”

. “[W]hat matters,” instead,

“is whether a document will expose the pre-decisional and deliberative processes of the

Executive Branch.”

.

Drawing from this precedent, numerous courts in this district have explained that

Exemption 5’s “threshold requirement is satisfied for communications exchanged between

agencies and the Office of the President, even though that office is not an agency for the

purposes of FOIA.” Judicial Watch, Inc. v. Dep’t of State,

(D.D.C.

2018) (quoting Judicial Watch, Inc. v. Consumer Fin. Prot. Bureau, 60 F. Supp. 3d. 1, 10

(D.D.C. 2014)). This case is no different. As in Judicial Watch I, the documents produced here

by EXIM, an agency subject to FOIA, were exchanged with a unit of the President’s staff not

25 covered by FOIA. So long as the records would “expose the pre-decisional and deliberative

processes of the Executive Branch,” therefore, they are protected from disclosure under

Exemption 5. See Judicial Watch I,

; see also EPA v. Mink,

(1973). That result, it bears noting, also tracks a decision from just last month — involving the

very same Plaintiff as here — in which a court found that a report prepared by an agency for the

President and his close advisors satisfied Exemption 5’s threshold demand. See Cause of Action

Inst. v. U.S. Dep’t of Commerce, No. 19-778,

, at *5 (D.D.C. Jan. 14, 2021);

see also Buzzfeed, Inc. v. FBI, No. 18-2567,

, at *5–7 (D.D.C. May 7, 2020)

(holding that documents created by agency and sent to White House Counsel’s Office, a non-

agency government entity, fulfilled Exemption 5’s initial requirement).

The Institute acknowledges this binding caselaw, but urges the Court to disregard such

authority, arguing that “[t]he prefixes ‘inter-’ and ‘intra-’ . . . limit” the scope of Exemption 5 “to

‘memorandums or letters’ exchanged within or among entities subject to the FOIA.” Pl. MSJ &

Opp. at 16–17 (emphasis removed). Plaintiff does not, however, explain how this district court

may properly ignore Circuit precedent. Indeed, Judicial Watch I itself rejected the view that its

interpretation was “inconsistent with [Exemption 5’s] textual limitation to ‘intra-agency’ or

‘inter-agency’ communications,” as the plaintiffs in the case suggested. See

; see

also Buzzfeed,

, at *5–6 (rejecting similar argument from plaintiffs); Cause of

Action,

, at *5 (same). No more need be said here.

b. Application of Privilege

As to the remaining question of whether the records at hand are predecisional and

deliberative, EXIM’s submissions, coupled with the Court’s in camera review, readily answer in

the affirmative. The agency’s declarant explains that the “planning documents . . . present

26 proposals back and forth between EXIM officials and the Executive Office of the President of

the United States discussing plans how to get high-level political nominees confirmed by the

U.S. Senate.” Jackson Decl., ¶ 38c. Defendant has thus adequately “identif[ied] the

decisionmaking process to which [the documents] contributed” — namely, the Executive

Branch’s “study of how to shepherd” the President’s nominees through to confirmation. Access

Reports,

. The memoranda are also clearly deliberative inasmuch as they reflect

the Executive Branch’s priorities surrounding the nominees and evolving, potential strategies for

how each might attain confirmation. By their very nature, these “plans” and “proposals,”

Jackson Decl., ¶ 38c, “reflect[] the give-and-take” of an Executive Branch “consultative

process.” Judicial Watch,

(alteration in original) (citation omitted).

Plaintiff’s sole response largely retreads ground the Court has already covered.

According to the Institute, documents withheld under this privilege must further agency

decisionmaking, not that of, say, the President or his immediate advisory staff. See Pl. MSJ &

Opp. at 23 (arguing that fact that “the relevant decisionmaker at hand is the President, not [EXIM

,] . . . is fatal to any privilege claim”) (emphasis removed). As explained above, however, the

D.C. Circuit has reversed a district court for embracing precisely that misguided proposition —

i.e., that Exemption 5 does not protect documents that further only the decisionmaking processes

of an Executive Branch entity not subject to FOIA. See Judicial Watch I,

. The

records that the Court of Appeals found properly withheld in Judicial Watch I, like those here,

“pertain[ed] not to [the agencies’] own deliberations but to those of the” non-agency unit

established to advise the President.

at 127–28; see also Shurtleff v. EPA,

,

14–15 (D.D.C. 2013) (determining that deliberative-process privilege protected documents

reflecting decisionmaking process not of individual agency, but rather of Executive Branch at

27 large). That Exemption 5 extends to such records is a feature, not a bug, of FOIA. Much like the

D.C. Circuit, this Court finds it “inconceivable” that “Congress intended Exemption 5 to protect

the decision-making processes of the Executive Branch when the decision is to be made by

‘agency’ officials subject to oversight by the President and not when the decision is to be made

by the President himself and those same agency officials are acting in aid of his decision-making

processes.” Judicial Watch I,

.

Finally, EXIM has discharged its duty to establish reasonably foreseeable harm from the

release of the planning documents. Disclosure of an aspect of the Executive Branch’s strategic

playbook for helping its nominees attain confirmation would, naturally, “significant[ly] chill”

any future “written discussion of such plans.” Jackson Decl., ¶ 38c. Release would also

undercut the very ends the memoranda were drafted to achieve. As the agency’s declarant

explains, certain individuals who “oppose all Senate-confirmed nominees for EXIM positions”

could draw upon the plans to “strengthen their own strategies for opposing . . . nominees,” a

result that “would only add to [EXIM’s] difficulties in getting nominees approved.”

The

planning documents, accordingly, were properly withheld.

3. Records Surrounding GAO Audit

The Court’s Exemption 5 journey concludes with yet another distinct set of records:

EXIM’s various productions and responses to GAO in connection with its aforementioned audit

of the Bank’s anti-fraud controls. See Vaughn Index at 3–4 (Rows 32, 33, and 41).

Notwithstanding Defendant’s suggestion that these materials were only redacted in part,

they

appear to have been reserved in full — and, according to Plaintiff, improperly so. In keeping

with the general result of this Opinion, the Court renders a split decision. Finding that the

records are best analyzed as five different sets of documents, it concludes that EXIM properly

28 withheld one and must release one. As to the remaining three, the Court once again holds — as

will come as little surprise to the diligent reader who has toiled along thus far — that the

Government has not furnished a record adequate to support a de novo review of its withholdings.

Plaintiff begins by mounting an argument that rings familiar: because GAO is concededly

not an “agency” subject to FOIA, see Jackson Decl., ¶ 39a, documents exchanged between

EXIM and GAO cannot qualify as inter- or intra-agency records under Exemption 5. See Pl.

MSJ & Opp. at 16. As GAO is a unit within the Legislative Branch that exists to provide

services for Congress, however, the operable legal framework does not wholly track that

pertaining to documents funneled between FOIA-subject agencies and FOIA-exempt units within

the Executive Branch, as discussed above. Fortunately, the parties essentially agree as to the

relevant legal test, which the Court will now lay out.

In Dow Jones & Co., Inc. v. Department of Justice,

(D.C. Cir. 1990), the

D.C. Circuit considered whether a letter sent by an Executive Branch agency covered by FOIA

to Congress was properly withheld under Exemption 5.

. It held not, explaining

that the statutory text “inter-agency or intra-agency” records “will not stretch to cover this

situation, because Congress is simply not an agency.”

. The court acknowledged that

such external communications from a FOIA-subject agency may qualify for protection when

they “are part and parcel of the agency’s deliberative process.”

. But because the letter

in question was drafted for the purpose of aiding the “deliberations of a non-agency” — i.e.,

Congress — it could not qualify as either an intra- or inter-agency record.

.

The Circuit clarified the scope of this holding a decade later in Rockwell International

Corp. v. U.S. Department of Justice,

(D.C. Cir. 2001), when it considered an

agency’s Exemption 5 withholding of several documents that the agency had, once more, sent to

29 Congress.

at 603–04. This time, however, the court reached the opposite outcome. Even

though the files “were sent to assist” a congressional subcommittee “in its deliberations,” they

enjoyed protection under Exemption 5.

. That was because the documents had been

“created [earlier] as part of the [agency’s] deliberative process,” thus making them “precisely the

kind of inter- and intra-agency memoranda Exemption 5 protects.”

The agency did not

“waive[] Exemption 5 protection” for documents that were drafted to serve the agency’s

decisionmaking process, as opposed to that of Congress, simply by later sending them to the

legislature.

at 603–04.

In sum, documents exchanged “between an agency and Congress . . . receive protection

as intra-agency memoranda if they were ‘part and parcel of the agency’s deliberative process,’”

but not if they were “created specifically to assist” or for the “sole purpose of assisting”

Congress “with its deliberations.”

at 604 (quoting Dow Jones,

); see also Pl.

MSJ & Opp. at 19–20 (largely reciting this test); Def. Reply & Opp. at 14 (similar); Elec.

Privacy Info. Ctr., 928 F. Supp. 2d at 164–65 (finding no Exemption 5 protection for document

“prepared to assist with Congressional deliberations rather than agency deliberations”).

The relevant framework thus expounded, the Court now applies it, which, as usual, is

more easily said than done. Defendant, unfortunately, has substantially contributed to this

difficulty. Although the withheld documents from EXIM’s production to GAO vary in type and

subject matter, its declarant simply lumps them together, describing them as “all pertain[ing] to

different frauds that had been committed against the agency over a period of years,” and

“discuss[ing] the particulars of the fraud, as well as the agency’s manner of addressing the

fraud.” Jackson Decl., ¶ 39a. Even the briefest in camera review reveals that this description is

plainly overbroad and — at least with respect to some of the withheld documents — seemingly

30 inaccurate, as their content has nothing to do with “fraud[] that had been committed against the

agency.”

Without at minimum a general description of each of the reserved documents,

including how and why it was created, a reviewing court will often be hard pressed to determine

whether it was aimed at serving “‘the agency’s deliberative process,’” rather than “created

specifically to assist Congress.” Rockwell,

(quoting Dow Jones,

).

Indeed, for three of these five sets of documents, the present record is inadequate for the

Court to pronounce on the propriety of the agency’s withholding, even assuming they satisfy

Exemption 5’s threshold requirement. One appears to be a 20-page “risk register” identifying

EXIM’s top perceived risks for the 2018 fiscal year. See Mulvey Decl. at

201900047F032Interim–52Interim. The vast majority of this document, however, plainly has

nothing to do with “fraud[] . . . committed against the agency,” Jackson Decl., ¶ 39a, and the

Bank never explains what role it plays in its deliberative process such that it could be properly

withheld under Exemption 5. Another is an “Enterprise Risk Assessment” report produced by an

external consulting firm for EXIM’s 2016 fiscal year. See Mulvey Decl. at

201900047F127Interim–54Interim. This document may well ultimately fall within the privilege,

but Defendant has neither acknowledged it nor accurately summarized its content, let alone

established its predecisional and deliberative nature.

The Court will also require further development on a third set of documents, see Mulvey

Decl. at 201900047F053Interim–79Interim, 201900047F107Interim–22Interim, but for different

reasons. Although these records (at last) do revolve around fraudulent conduct committed

against EXIM, the Court’s in camera review makes clear that they were created in response to

questions submitted by GAO as it conducted its audit — in other words, “specifically to assist

31 Congress,” such that they generally would not fulfill Exemption 5’s initial “intra-agency”

condition. Rockwell,

. In response, Defendant fleetingly suggests in its briefing

— but not its declaration — that GAO’s audit was “just one more step in the process by which

EXIM Bank makes a decision/policy on how to respond to fraud.” Def. Reply & Opp. at 14.

Notwithstanding the fact that the documents were created for Congress, then, Defendant seems

to contend that they were nonetheless “part and parcel of the agency’s deliberative process”

because the audit to which they contributed was in turn a component of a broader agency review

of its anti-fraud controls. Dow Jones,

(emphasis removed). The Court has its

doubts as to the viability of this tack. In light of its disposition on other issues, however, it will

provide the Bank another opportunity to more precisely explain how the GAO audit served its

own decisionmaking process, as well as how the documents qualify as both predecisional and

deliberative in any event.

No delay, by contrast, attends the final two withholdings. One is a 2007 internal

memorandum from EXIM’s Office of General Counsel regarding the agency’s preliminary

investigation into a specific set of fraudulent transactions. See Mulvey Decl. at

201900047F080Interim–106Interim. Produced for the express purpose of enabling the Bank to

make decisions regarding credit, debarment, and criminal referrals, the document maintains a

deliberative character that follows immediately from its predecisional nature, as it evinces an

“inten[t] to facilitate or assist development of the agency’s final position on the relevant

issue[s].” Nat’l Sec. Archive v. CIA,

(D.C. Cir. 2014). The memo,

consequently, was plainly “part and parcel of the agency’s deliberative process,” and it did not

forfeit its protection upon EXIM’s mere submission to Congress a decade after its creation.

Rockwell, 235 F.3d at 603–04 (quoting Dow Jones,

); cf. Buzzfeed,

2219246 at *9–11 (holding that privileged agency document did not forfeit Exemption 5

protection when agency shared it with Congress). While hefty chunks of information within the

memo may be characterized as factual, its author’s “selection of the facts thought to be relevant”

to the decision at hand constitutes a core part of the agency’s deliberative process. Mapother,

; see also Reinhard v. Dep’t of Homeland Sec., No. 18-1449,

, at

*7 (D.D.C. July 11, 2019) (“When final decisionmakers rely on others to condense a mass of

available information into a summary or set of factual findings that the staff thinks important to

the final decisionmaker, the deliberative-process privilege applies.”). Disclosure of this initial

investigatory document, moreover, would expose aspects of the Bank’s anti-fraud strategies to

the public eye, thus “deterr[ing] [agency staff] from frankly assessing individual fraud matters[]

and openly proposing plans to address such fraud.” Jackson Decl., ¶ 39a. This document was

properly withheld.

The story is different for the final record, which spans but a single page. Defendant says

nothing about it, other than the fact that it contains an “EXIM response to GAO questions.”

Vaughn Index at 4 (Row 41). In addition to thus appearing to flunk Exemption 5’s threshold

requirement, see Elec. Privacy Info. Ctr.,

, in no fashion may the

document be deemed deliberative. It simply reports the dollar amount of a particular restitution

award identified from a court order, in response to a GAO inquiry. Because withholding this

record seemingly does nothing to “protect[]” EXIM’s “decision making processes,” Sears,

(citations omitted), and because Defendant has pointed to no foreseeable harm from

its disclosure, the agency must release it to Plaintiff.

Before bringing this section to a close, the Court briefly addresses a perplexing assertion

made in passing by the Bank’s declarant that “GAO requests and inquiries are the property of

33 GAO and not subject to FOIA.” Jackson Decl., ¶ 39a. To the extent this position is intended to

cover the reserved documents themselves, it is wholly inconsistent with Defendant’s treatment of

them throughout this litigation. EXIM, after all, explicitly withheld the documents pursuant to

specific FOIA exemptions, see Vaughn Index at 3–4, thus treating them as agency records. Its

Motion followed the same path, see Def. MSJ at 15–16, never once suggesting that they were

“not subject to FOIA” altogether. See Jackson Decl., ¶ 39a. To the extent the declarant’s

statement is instead meant to embrace the specific “requests and inquiries” GAO made to EXIM,

as opposed to the latter’s subsequent production, the relevance to the present litigation is

unclear; such “requests and inquiries” are not presently at issue, and Defendant never identifies

any information as property of GAO not subject to FOIA.

B. Exemption 6

With Exemption 5 (finally) out of the way, the Court now turns to a point of contention

that is comparatively minor: whether EXIM properly withheld the email addresses of a handful

of personnel from the Executive Office of the President under Exemption 6. See Pl. MSJ & Opp.

at 12–15 (limiting challenge to redactions of email addresses); Vaughn Index at 2–3 (relevant

records at Rows 13, 28–30). The Court confesses that Plaintiff’s fixation on this issue is

puzzling, for although the EOP staffers’ email addresses are redacted from the responsive

records, the Bank fully disclosed their names. The instant contretemps, therefore, is limited to a

grand total of four withheld email addresses across five pages where the identities of all senders

and recipients are known. Heeding the parties’ summons to duty, the Court will nonetheless

plow ahead and determine whether redaction was proper.

It bears noting, at the outset, that EXIM claims that the email addresses in question are

both protected by Exemption 6 and not subject to FOIA at all on account of their being the

34 property of the EOP. See Jackson Decl., ¶ 46 (explaining that Government withheld “email

addresses on grounds that such information belongs to the EOP, as well as on privacy grounds

under Exemption 6”). The agency never explains how this information could be at once outside

the scope of FOIA and also subject to withholding under Exemption 6. To the extent it intends

to make such alternative arguments — unusual in this context — it never so clarifies. No matter,

as even assuming the email addresses are properly subject to FOIA, Exemption 6 provides a

sufficient basis for the Bank’s nondisclosure.

That exemption protects “personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of personal privacy.”

(b)(6). There is no dispute that the withheld email addresses qualify as “similar files” under

the statute. Id.; see also U.S. Dep’t of State v. Wash. Post Co.,

(1982)

(explaining that information that “applies to a particular individual” qualifies as “similar files”

under Exemption 6); Gov’t Accountability Project v. U.S. Dep’t of State,

(D.D.C. 2010) (“Because . . . email addresses can be identified as applying to particular

individuals, they qualify as ‘similar files’ under Exemption 6 . . . .”) (citation omitted).

With the first hurdle thus easily cleared, the Court turns to the parties’ true point of

disagreement: whether disclosure of the email addresses “would constitute a clearly unwarranted

invasion of personal privacy.”

(b)(6). That inquiry, in turn, involves a “balancing

of interests between the protection of an individual’s private affairs from unnecessary public

scrutiny, and the preservation of the public’s right to governmental information.” U.S. Dep’t of

Def. Dep’t of Mil. Affs. v. FLRA,

(D.C. Cir. 1992) (quoting Rose,

); see also Beck v. Dep’t of Justice,

(D.C. Cir. 1993) (requiring courts to

“balance the privacy interests that would be compromised by disclosure against the public

35 interest in release of the requested information”) (quoting Davis v. Dep’t of Justice,

(D.C. Cir. 1992)).

The Court begins with the familiar inquiry into “whether disclosure of the files would

compromise a substantial, as opposed to de minimis, privacy interest,” for “if no significant

privacy interest is implicated FOIA demands disclosure.” Multi Ag Media LLC v. Dep’t of

Agriculture,

(D.C. Cir. 2008) (cleaned up). “A substantial privacy interest

is anything greater than a de minimis privacy interest.”

at 1229–30. “Finding a substantial

privacy interest does not conclude the inquiry; it only moves it along to the point where [the

Court] can address the question whether the public interest in disclosure outweighs the individual

privacy concerns.”

(citation and internal quotation marks omitted).

Here, the Court agrees with EXIM that the identified EOP personnel enjoy a “substantial

privacy interest” in their email addresses.

According to the Bank, disclosure of the withheld

contact information could cause those individuals to experience “harassment, unwanted

attention, and unsolicited communications.” Jackson Decl., ¶ 44. Courts in this district have

looked favorably upon such concerns, concluding on numerous occasions for reasons similar to

those identified here that government employees — and, in one case, EOP staff — have a

substantial privacy interest in their email addresses. See, e.g., Shurtleff, 991 F. Supp. 2d at 18–

19 (affirming withholding of work email addresses of EOP staff, given their “significant personal

interest in preventing the burden of unsolicited emails and harassment”) (citation omitted); Hall

& Assocs. v. EPA, No. 19-1095,

, at *5 (D.D.C. Aug. 12, 2020) (explaining

that “[c]ourts have . . . upheld the withholding of email addresses used for work purposes where

they are not publicly available,” and recognizing the “interest individuals have in keeping their

email addresses private and controlling the dissemination of that information”); Ctr. for Pub.

36 Integrity v. U.S. Dep’t of Energy, No. 18-1173,

, at *8 (D.D.C. Apr. 6, 2020)

(similar). These decisions, which the Court finds persuasive, accord with the broader principle

that “[t]he privacy interest of civilian federal employees includes the right to control information

related to themselves and to avoid disclosures that ‘could conceivably subject them to annoyance

or harassment in either their official or private lives.’” Elec. Privacy Info. Ctr.,

(quoting Lesar v. U.S. Dep’t of Justice,

(D.C. Cir. 1980)).

Instead of acknowledging this line of adverse caselaw, Plaintiff primarily argues that

EXIM has not established with the requisite specificity why disclosure of the withheld email

addresses would threaten any privacy interest in these particular circumstances. See MSJ &

Opp. at 14. It is no doubt true, as the Institute points out, that “the disclosure of names and

contact information is not inherently and always a significant threat to . . . privacy.”

(cleaned

up) (quoting Sai v. Transp. Sec. Admin.,

(D.D.C. 2018)). Here,

however, the “threat to privacy” is “real rather than speculative.” Smith v. Dep’t of Lab.,

(D.D.C. 2011). For one, the withheld addresses are retained by high-ranking

executive-branch staffers, not lower-level agency line employees far removed from any

substantive policy role or the key events at issue. For another, the Institute has indicated that it

will “make the results of [its FOIA] request available to a reasonably broad public audience

through various media,” thus raising the potential for broad dissemination of the email addresses

in question. See ECF No. 1-1 (9/20/18 FOIA Request) at 2; see also Elec. Privacy Info. Ctr.,

(noting, as evidence of privacy interest, possibility that plaintiff would publish

released documents online and that readers would contact named employees). These

considerations, moreover, readily discharge the Bank’s obligation to establish reasonably

37 foreseeable harm from disclosure of the reserved email addresses. See Reporters Comm. for

Freedom of Press v. FBI, No. 15-1392,

, at *9 (D.D.C. Mar. 20, 2020).

In these circumstances, the Court has little difficulty concluding that Defendant has

established a “substantial privacy interest” in the withheld information. Prison Legal News v.

Samuels,

(D.C. Cir. 2015). That is so even if the agency’s somewhat

cursory declaration could have offered more in support of that interest, and even if the threat

posed by disclosure is less evident than in other cases where an agency successfully withheld

government email addresses. The standard to determine whether a privacy interest is

“substantial,” after all, “is not very demanding.” Multi Ag Media,

. EXIM has

cleared that relatively low bar here; while the privacy interest at hand may well be “rather

modest,” it is nonetheless “more than de minimis,” and that is all that is required. Hall &

Assocs.,

, at *5.

Looking to the other side of the scale, the “only relevant public interest in disclosure to

be weighed in this balance is the extent to which disclosure would serve the core purpose of the

FOIA, which is contributing significantly to public understanding of the operations or activities

of the government.” Dep’t of Def. v. FLRA,

(1994) (cleaned up). The task is

simple, since Plaintiff has identified no public interest whatsoever in the withheld email

addresses. Critically, as explained above, EXIM has already released the names of the particular

EOP staffers involved in the communications at issue; it has only withheld, and the Institute only

seeks, their email addresses. It remains a mystery to the Court how disclosure of the employees’

email addresses — when their identities are already out in the open — would enhance “public

understanding of the operations or activities of the government,”

or otherwise shed light on

EXIM’s workings with EOP. See Shurtleff, 991 F. Supp. 2d at 18–19 (determining that privacy

38 interest in official EOP email addresses outweighed public interest in disclosure because records

already revealed identities of individuals whose email addresses were redacted).

In sum, the identified privacy interest — regardless of its precise magnitude — prevails

over a non-existent public interest in disclosure. In other words, “something, even a modest

privacy interest, outweighs nothing every time.” Nat’l Ass’n of Retired Fed. Emps. v. Horner,

(D.C. Cir. 1989); see also U.S. Dep’t of Def.,

(explaining that

“a very slight privacy interest would suffice to outweigh” the “virtually nonexistent . . . public

interest in disclosure”). Disclosure of the withheld email addresses, accordingly, “would

constitute a clearly unwarranted invasion of personal privacy.”

(b)(6).

C. Record Not Subject to FOIA

The parties’ final clash centers around a one-page document, a seemingly innocuous

email chain setting up a call between an EXIM employee and an official within the Executive

Office of the President. See Mulvey Decl. at 201800076F1729–30. While the Bank produced

the individual messages from its own staffer, it redacted three others from the EOP

correspondent as property of the EOP “not subject to FOIA.” Jackson Decl., ¶ 46; Def. MSJ at

20. Plaintiff challenges those withholdings.

The Court, however, finds that it cannot presently resolve this quarrel, as both parties’

submissions leave certain critical elements wanting. For all of Defendant’s insistence that the

relevant portions of the email chain are not subject to FOIA, it insufficiently identifies the source

of such material while overstating the entities not covered by the statute’s broad disclosure

mandate. The Government at times suggests, for instance, that “all individuals employed in the

Executive Office of the President and its supporting offices” are not subject to FOIA. See Def.

MSJ at 20; see also Jackson Decl., ¶ 46 (“The Executive Office of the President is not subject to

39 FOIA.”). On the contrary, FOIA makes clear that the EOP is within its reach. See

(f)(1). It is only the President’s “immediate personal staff,” as well as Executive Office

units “whose sole function is to advise and assist the President,” that are excluded from the

statute’s coverage. Judicial Watch,

(quoting Kissinger,

).

Defendant has made no effort to establish that the sender of the redacted emails falls into that

latter group. See Def. MSJ at 20 (stating only that it “withheld information from the Executive

Office of the President”). To be sure, it may well be the case that he does, but it is not this

Court’s place to so speculate where the Government offers no information about him or his

precise unit. While the Court was willing to assume earlier that distinct officials worked in the

sole capacity of advising and assisting the President where it made no difference to the ultimate

outcome, see supra at 24, here the Bank’s withholdings rest on its ability to demonstrate those

very circumstances.

In addition, the parties exchange several pages of argument as to whether Defendant

properly segregated or improperly segmented the record at issue. See Pl. MSJ & Opp. at 5–9;

Def. Reply & Opp. at 22–23; ECF No. 33 (Pl. Reply) at 2–4. Yet, for all their discussion, they

never acknowledge the D.C. Circuit’s instruction that agencies may redact information not

subject to FOIA from documents that otherwise qualify as agency records. See United We Stand

Am., Inc. v. IRS,

, 603–04 (D.C. Cir. 2004) (rejecting argument that documents

cannot be “part-agency records”); Judicial Watch,

(summarizing United We

Stand as “holding that portions of agency records may be redacted as non-agency records”).

That guidance seemingly renders irrelevant, as well as inapt, any debate over whether EXIM

improperly “divide[d]” a single agency record “into multiple so-called ‘records.’” Pl. MSJ &

Opp. at 6.

40 That is all the Court need say for now. To the extent the Government desires to continue

withholding — and Plaintiff wishes to continue pursuing — isolated snippets from what EXIM’s

production has already revealed to be a simple email conversation aimed at scheduling a phone

call, the Court expects the parties’ renewed submissions to account for the above.

***

The Court concludes with a brief word on segregability, along with Plaintiff’s claim that

Defendant has failed to release all non-exempt, reasonably segregable information from the

withheld records. See Pl. MSJ & Opp. at 34–35 (citing

(b)). All EXIM offers on

the matter is its conclusory assertion that it “has conducted a line-by-line review of all of the

foregoing documents and has segregated and released all reasonably segregable, non-exempt

information.” Jackson Decl., ¶ 47. That alone will not discharge the agency’s “obligation to

carry its evidentiary burden and fully explain its decisions on segregability.” Am. Immigr.

Council,

; see also Mead Data,

(“[U]nless the

segregability provision of the FOIA is to be nothing more than a precatory precept, agencies

must be required to provide the reasons behind their conclusions in order that they may be

challenged by FOIA plaintiffs and reviewed by the courts.”). Indeed, Plaintiff has highlighted

several red flags undermining the “presumption” that Defendant has disclosed all reasonably

segregable material, see Hodge v. FBI,

(D.C. Cir. 2013), including the basic

reality that a number of the records the Government claims were only redacted in part appear to

have been redacted in full. See, e.g., Vaughn Index at 1–2 (Rows 4, 7, 9, 10, 11).

The Court’s own in camera review, moreover, causes it to further question whether the

Bank has adequately complied with FOIA’s segregability mandate. As Defendant conducts its

renewed review of the documents in accordance with this Opinion, the Court trusts that it will

41 carefully determine whether any reasonably segregable, non-exempt information can be released

— including, for example, document headers, title pages, straightforward timelines and

chronologies, and, most crucially and most broadly, other non-deliberative text that does not

qualify for protection under Exemption 5.

IV. Conclusion

For the foregoing reasons, the Court will grant in part and deny in part the Motions for

Summary Judgment. A separate Order so stating shall issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: February 23, 2021

42