UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON,

Plaintiff, Case No. 20-cv-2044 (CRC) v.

U.S. DEPARTMENT OF STATE,

Defendant.

MEMORANDUM OPINION

In this Freedom of Information Act (“FOIA”) case, Plaintiff Citizens for Responsibility

and Ethics in Washington (“CREW”) seeks records related to the U.S. Department of State’s

handling of document and testimony requests from congressional committee chairs. After

CREW filed suit, the Department released twelve responsive documents in part, but invoked

FOIA Exemption 5 and the deliberative process privilege to justify withholding portions of each.

CREW objects to all of the Exemption 5 redactions, which it groups into three categories: (1)

material related to draft responses to specific congressional inquiries, including drafts of one

letter and emails discussing potential edits; (2) emails discussing the Department’s approach to

various other document requests and document-processing issues; and (3) select redactions from

an internal Department report discussing progress responding to document requests.1 The parties

have filed cross-motions for summary judgment on the propriety of these withholdings.

The Court will deny the State Department’s motion for summary judgment, in part

without prejudice, and will grant in part and deny in part CREW’s cross-motion. As to the first

1 The parties’ briefing discusses these categories in a different order. The Court has rearranged the second and third categories to group together similar substantive discussions. two categories, the Department has not provided sufficient detail for the Court to determine

whether the material withheld is deliberative under the standards the D.C. Circuit recently

articulated in Reporters Committee for Freedom of the Press v. FBI,

(D.C. Cir.

2021), and Judicial Watch, Inc. v. U.S. Department of Justice,

(2021). The Court

will therefore remand these matters to the Department to reevaluate the propriety of these

redactions and, if it chooses, provide more detailed justifications for any remaining withholdings.

But the Court does have enough information to evaluate the final group of redactions to the

internal report. State has not and cannot establish that the material redacted is deliberative, nor

that release of the report would lead to reasonably foreseeable harm. Accordingly, the

Department must release this document in full.

I. Background

CREW is a non-profit watchdog organization focusing on government ethics and

transparency. See Compl. ¶ 4. In 2020, several news outlets reported that the White House had

directed administration officials—including at the State Department—to rebuff efforts at

oversight from Democratic chairs of various House committees, but cooperate in full with

requests by the Republican heads of Senate committees. See

¶¶ 10–16. In response to this

alleged partisan approach to congressional oversight, CREW filed a complaint with the State

Department’s Office of Inspector General requesting an investigation into “allegations that the

State Department [wa]s improperly politicizing its approach to high-profile congressional

investigations.” Id. ¶ 17.

Not content to wait for the Inspector General to act, CREW also lodged two FOIA

requests with the State Department in June 2020. See id. ¶ 20. In the first request, CREW

sought material “pertaining, concerning, or reflecting any guidance, instruction, directive, or

2 recommendation on how to handle document or testimony requests from congressional

committee chairs, and whether that handling differs depending on the political party of the

Chairman or Chairwoman who makes the request.” Id. ¶ 21. In the second request, CREW

sought two additional categories of records. First, it requested any communications sent or

received by certain State Department officials regarding requests for documents or testimony

from three Democratic House committee chairs. Id. ¶ 22. Second, CREW asked for documents

and communications sent or received by then-Secretary of State Michael R. Pompeo and other

high-level officials related to CREW’s Inspector General complaint. Id. ¶ 23. When the State

Department failed to timely respond to the FOIA requests, CREW filed suit. See id. ¶ 27.

Production is now complete. The Department released portions of twelve responsive

documents, but it redacted material from each based on the deliberative process privilege. See

Stein Decl. ¶¶ 8–9, 12. CREW disputes the propriety of these withholdings. See Pl.’s Opp’n to

Def.’s Mot. Summ. J. & Mem. in Support of Pl.’s Cross-Mot. Summ. J. (“Pl.’s Cross-MSJ”) at

10–16. In CREW’s view, the Department also has not established that foreseeable harm would

result from disclosure, as required by the FOIA Improvement Act of 2016,

(a)(8)(A)(i), nor that it has released any segregable, non-exempt material. See Pl.’s Cross-

MSJ at 16–20. The parties filed cross-motions for summary judgment, which are ripe for review.

II. Legal Standards

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).

“But Congress also realized that legitimate governmental and private interests could be harmed

by release of certain types of information.” DiBacco v. U.S. Army,

(D.C. Cir.

2015) (internal quotation marks omitted). “Accordingly, FOIA balances the public’s need for

3 access to official information with the Government’s need for confidentiality by exempting nine

categories of records from disclosure.”

(internal alteration and citation omitted); see

(b). 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).

FOIA disputes are typically and appropriately resolved on summary judgment. See

Citizens for Resp. & Ethics in Washington v. Dep’t of Homeland Sec.,

, 187

(D.D.C. 2021). In FOIA cases, an “agency is entitled to summary judgment if no material facts

are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was

adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-

exempt parts of records have been disclosed after redaction of exempt information.’” Prop. of

the People, Inc. v. Office of Mgmt. & Budget,

(D.D.C. 2018) (quoting

Competitive Enter. Inst. v. EPA,

(D.D.C. 2017)).

As to the claimed exemptions, the agency may satisfy its burden through declarations that

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

“demonstrate[] that the information withheld logically falls within the claimed exemption.”

ACLU v. Dep’t of Def.,

(D.C. Cir. 2011). “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.” Jud. Watch, Inc. v. CIA,

(D.D.C. 2018).

Agency declarations will not support summary judgment, however, if the plaintiff puts forth

contrary evidence or demonstrates the agency’s bad faith. ACLU,

.

As to its obligation to segregate and release non-exempt material, the government may

similarly demonstrate that it released all reasonably segregable parts of otherwise exempt records

4 by submitting an affidavit indicating that an agency official conducted a review of each

document and determined that the documents did not contain segregable information. Johnson v.

Exec. Office for U.S. Attorneys,

(D.C. Cir. 2002). While the agency may not

rely on conclusory statements, Mead Data Cent., Inc. v. U.S. Dep’t of Air Force,

,

260–61 (D.C. Cir. 1977), it is entitled to a presumption that it complied with its segregability

obligation, Hodge v. FBI,

(D.C. Cir. 2013).

Finally, the government must also demonstrate at summary judgment that it has satisfied

the standards imposed by the FOIA Improvement Act of 2016, which allows an agency to

withhold information only if it “reasonably foresees that disclosure would harm an interest

protected by an exemption” to FOIA or “disclosure is prohibited by law.”

(a)(8)(A)(i). The statute’s “distinct foreseeable harm requirement . . . foreclose[s] the

withholding of material unless the agency can articulate both the nature of the harm [from

release] and the link between the specified harm and specific information contained in the

material withheld.” Reps. Comm.,

(second alteration in original) (internal

quotation marks omitted).

III. Analysis

This case concerns the application of FOIA Exemption 5 and the deliberative process

privilege, which the State Department cited as justification for all the withholdings in dispute.

Exemption 5 protects “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). The Exemption thus incorporates, “albeit in a less-than-straightforward way[,] . . .

the litigation privileges available to Government agencies in civil litigation,” including the

deliberative process privilege. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc.,

,

5 785 (2021). The deliberative process privilege exists “[t]o protect agencies from being forced to

operate in a fishbowl.”

(internal quotation marks omitted). To do so, it “shields from

disclosure documents reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and policies are formulated.”

(internal quotation marks omitted). An agency may only invoke the deliberative process

privilege “for documents that are both predecisional and deliberative.” Reps. Comm.,

. “Documents are ‘predecisional’ if they were generated before the agency’s final decision

on the matter, and they are ‘deliberative’ if they were prepared to help the agency formulate its

position.” U.S. Fish & Wildlife Serv., 141 S. Ct. at 786.

CREW groups its challenges to the government’s invocation of the deliberative process

privilege into three categories. First, CREW objects to the withholding of material related to

responses to specific congressional inquiries, including two full drafts of a letter to the House

Committee on Oversight and Reform’s then-Chair Elijah E. Cummings, as well as emails

discussing edits to this and another draft letter. Pl.’s Cross-MSJ at 10–12. Second, CREW

contests the Department’s withholding of several emails about document processing—related to

other congressional document requests, and a plan for resuming operations following a

government shutdown. Id. at 15–16; see also Pl.’s Reply at 6–7. Third, CREW argues that the

Department improperly withheld “purely factual material” from an internal progress report about

responses to congressional document requests. Pl.’s Cross-MSJ at 13–15. As to each category,

CREW also asserts that the Department has not established that reasonably foreseeable harm

would result from disclosure, and has not satisfied its further obligation to release any

segregable, non-exempt material. See id. at 16–20.

6 Below, the Court will consider in turn the parties’ arguments regarding each category.

As to the first two groups—related to congressional correspondence and internal policy

discussions—the Court concludes that the Department has not, on the current record, met its

burden at summary judgment. In particular, the Department’s declarations and Vaughn index do

not provide the level of detail needed to assess whether the documents are indeed deliberative,

following recent guidance from the D.C. Circuit on this question in Reporters Committee for

Freedom of the Press v. FBI, 3 F.4th at 361–68, and Judicial Watch, Inc. v. U.S. Department of

Justice, 20 F.4th at 54–57. The Court will therefore deny both motions for summary judgment

without prejudice as to these categories. As to the remaining withholding category, however—

factual material embedded in an internal progress report—the Court concludes that the

Department cannot meet its burden and that CREW is entitled to summary judgment.

Accordingly, the Court will deny the Department’s motion for summary judgment and grant

CREW’s cross-motion on that single issue.

A. Congressional correspondence drafts

CREW first challenges the withholding of emails related to specific congressional

correspondence. Here, CREW objects to the redaction of emails discussing draft letters to

Representative Cummings and then-Representative Trey Gowdy—neither of which, apparently,

were ever sent.2 It also argues that the Department improperly withheld the substantive content

2 The Department suggests that CREW has conceded any objection to the Representative Gowdy material because its opening brief did not specifically mention this withholding. See Def.’s Resp. & Reply at 2 n.1 (citing Shapiro v. U.S. Dep’t of Just.,

, 106 n.1 (D.D.C. 2017)). The Court will not treat this objection as conceded, though it agrees that CREW’s opening brief could have been more precise. In that pleading, CREW took issue with the withholdings in all twelve documents. See Pl.’s Cross-MSJ at 7, 9. Moreover, it clearly argued against application of the exemption to the Representative Cummings material,

at 10– 12, and those arguments apply to the similar exchanges about the Representative Gowdy letter.

7 of two attachments to those emails, which contained drafts of the letter to Representative

Cummings. On the current record, the State Department has adequately established that this

material is predecisional but has not demonstrated that it is also deliberative, as required for

invocation of the deliberative process privilege. See Reps. Comm.,

. As a result,

neither party is yet entitled to summary judgment.

The material CREW seeks in this category is predecisional. A document is

“predecisional” if it was “generated before the agency’s final decision on the matter,” and does

not “communicate[] a policy on which the agency has settled.” U.S. Fish & Wildlife Serv., 141

S. Ct. at 786. “[W]hether a document communicates the agency’s settled position” is a

“functional rather than formal inquiry,” requiring courts to “consider whether the agency treats

the document as its final view on the matter.” Id. at 786, 788. Neither the emails nor the

underlying draft letters represented the Department’s final view on how to respond to the

congressional inquiries at issue. In its summary judgment submissions, the Department

described the contents of the relevant emails as, among other things, “editing suggestions related

to . . . draft letters,” Second Stein Decl. ¶ 18; “preliminary, non-final thoughts about what

information should be included” in one letter, Vaughn Index at 1; and efforts to “seek[]

clearance” on the other, id. at 4. These are prototypical predecisional discussions. The draft

letters to Chairman Cummings likewise were not final. While CREW correctly notes that draft

documents are not “per se exempt” from disclosure, Judicial Watch, Inc.,

, a draft

is still “typically . . . predecisional” because it “is, by definition, a preliminary version of a piece

of writing subject to feedback and change,” U.S. Fish & Wildlife Service, 141 S. Ct. at 786, 788.

That is precisely how the Department’s Vaughn index describes the letters here: as “drafts

reflecting th[e] edits” proposed by staffers, “predat[ing] any final version of the letter prepared

8 by Department officials.” Vaughn Index at 1. Because these materials “preceded the finalization

and transmission” of any letter to Congress, they “qualify as predecisional.” Judicial Watch,

Inc.,

.

CREW disputes this conclusion. It contends that the Department has not adequately

established whether any letters were ever sent, giving the Court “no way to confirm” whether the

material, in fact, preceded a final decision. Pl.’s Cross-MSJ at 10–11. CREW’s argument

misses the mark, on both the facts and the law. As to the facts, the Court is satisfied that the

Department, at the very least, never sent the discussed letter to Representative Cummings. In

response to CREW’s summary judgment motion, the Department submitted a second declaration

detailing searches of both internal and public records that turned up no evidence of any

transmission. Second Stein Decl. ¶ 16. And as to the law, CREW’s argument erroneously

focuses on the outcome of the Department’s deliberations, rather than the role the material at

issue played in the process. As the Supreme Court explained last term, “[a] document is not final

solely because nothing else follows it.” U.S. Fish & Wildlife Serv., 141 S. Ct. at 786. While

proposals may “die[] on the vine” during deliberations, “documents discussing such dead-end

ideas can hardly be described as reflecting the agency’s chosen course.” Id. Here, the

Department apparently decided not to respond to either representative, so drafts and discussions

of potential responses do not “communicate[] a policy on which” the Department “ha[d] settled.”

Id. And even if CREW were right on the facts—and the Department did indeed send out letters

to Representatives Cummings or Gowdy—“a recommendation does not lose its predecisional . . .

character simply because a final decisionmaker later follows or rejects it without comment.”

Machado Amadis v. U.S. Dep’t of State,

, 370–71 (D.C. Cir. 2020) (citing

Renegotiation Bd. v. Grumman Aircraft Eng’g Corp.,

(1975)). The drafts and

9 discussions here were still mere recommendations about whether and how to communicate with

members of Congress, so they are predecisional.

But “[d]etermining whether a document is deliberative is less straightforward than

determining whether it is predecisional,” Jud. Watch,

, and the Court does not have

enough information to make that evaluation on the present record. In the past year, the D.C.

Circuit has clarified what an agency must show—and at what level of detail—to sustain its

burden on a deliberative process claim at summary judgment. First in Reporters Committee, the

court evaluated several documents over which the FBI had claimed deliberative process

privilege, and found that not all of them were indeed deliberative. See 3 F.4th at 361–68. What

mattered, the court explained, was whether the “documents discuss and debate proposed agency

policies, positions, and actions,” rather than “simply describe already-made and in-place policy

choices.” Id. at 367.

Six months later—well after the close of briefing in this case—the D.C. Circuit further

explained how an agency must demonstrate that a given document fits this standard. In Judicial

Watch, the court considered the Department of Justice’s invocation of the deliberative process

privilege over several drafts of a statement that then-Acting Attorney General Sally Yates

ultimately released.

. The court concluded that the Department had not established

the deliberative character of the draft statements under a test it drew from Senate of Puerto Rico

v. Department of Justice,

, 585–86 (D.C. Cir. 1987).

at 55–57. That test

requires an agency to show (1) “what deliberative process is involved” and (2) “the role played

by the documents in issue in the course of that process,” and encourages the agency to further

“explain (3) the nature of the decisionmaking authority vested in the officer or person issuing the

disputed document, and (4) the relative positions in the agency’s chain of command occupied by

10 the document’s author and recipient.” Id. at 55 (internal citation and quotation marks omitted);

see also id. at 56 (explaining that the D.C. Circuit has found material deliberative where it “knew

the ‘who,’ i.e., the roles of the document drafters and recipients and their places in the chain of

command; the ‘what,’ i.e., the nature of the withheld content; the ‘where,’ i.e., the stage within

the broader deliberative process in which the withheld material operates; and the ‘how,’ i.e., the

way in which the withheld material facilitated agency deliberation”).

The State Department’s evidentiary submissions, made shortly after or before the D.C.

Circuit’s most recent pronouncements, do not include the level of detail the Court now needs to

evaluate the deliberative nature of the emails and draft letters. In particular, the Department has

not told us “who prepared the” emails or drafts “or to whom the[y] were addressed,” nor

anything about the “nature of the decisonmaking authority vested” in the various players,

including their “relative positions in the agency’s chain of command.” Id. at 56. Rather, in the

Vaughn index, the Department identifies the authors and recipients of the emails only by their

office—the offices of Information Programs and Services (IPS) and Government Information

Services (GIS) for the communications related to the Representative Cummings letter, and IPS

for those concerning the draft letter to then-Representative Gowdy. See Vaughn Index at 1, 4.

Nor has the Department told us much about the “deliberative process . . . involved”—i.e.,

the “procedure . . . followed” to consider the draft letters—or the “role” the material here played

“in the course of that process.” Jud. Watch,

(internal citation and quotation marks

omitted). In fact, the Department’s initial declaration provided no other detail about the authors,

recipients, content, or context of the material, other than what appeared in the Vaughn index.

While the Department later supplemented the record with respect to the letter to Representative

Cummings, its explanation is still sparse. In the second Stein declaration, the Department

11 explained that the emails focused on drafts of a three-page letter from Mary Elizabeth Taylor,

then-Assistant Secretary of the Bureau of Legislative Affairs, to Representative Cummings,

concerning the “status of six inquiries” of the House committee he then led. Second Stein Decl.

¶ 15. The declaration further describes the accompanying email exchange as “communications

reflecting, transmitting, and discussing proposed edits to these two drafts,” and notes that they

include “the drafters’ and editors’ preliminary, non-final thoughts about what information should

be included” in the letter.

¶¶ 17–18. But the D.C. Circuit rejected just such a broad, non-

specific description of a deliberative process in Judicial Watch. There, a claim that disclosure

would “reveal the drafters’ evolving thought processes” and “ideas and alternatives considered

but ultimately rejected” was not enough; the department needed to “explain[] why.”

. The State Department must do the same here.

For that reason, the Court will deny without prejudice both bids for summary judgment

on these documents, and will allow the Department to reevaluate its invocation of the

deliberative process privilege in light of Judicial Watch and Reporters Committee. To be clear,

the Court does not weigh in on whether the Department will ultimately be able to satisfy its

burden on this question. Courts in this district have long held that agency discussions about

“how to respond to questions from Congress about matters of agency policy qualify as

deliberative.” Judicial Watch, Inc. v. U.S. Dep’t of State,

, 115–16 (D.D.C.

2018); see also Competitive Enter. Inst. v. EPA,

, 119–20 (D.D.C. 2014)

(holding discussions about how to handle congressional testimony and communications were

deliberative); Judicial Watch, Inc. v. Dep’t of Homeland Sec.,

(D.D.C.

2010) (holding same as to discussions of how to respond to inquiries from Congress). But the

Court simply cannot, on the record here, determine whether the material at issue constitutes the

12 type of back-and-forth exchange of ideas that the deliberative process privilege protects. Should

the Department determine that it does, State may again move for summary judgment and submit

a more detailed declaration to aid the Court in evaluating its claim.

Because the Court cannot yet determine the deliberative nature of the emails and draft

letters, it will hold off on evaluating whether the Department has met its other burdens at

summary judgment—to show that reasonably foreseeable harm would result from release of any

deliberative material, and to demonstrate that it adequately segregated any non-exempt material.

The Court notes, however, that the Department’s current description of the harm that would

foreseeably result from the release of this material may, too, be inadequate under the standards

the D.C. Circuit has articulated. In the second Stein declaration, the Department explains

generally that release “could reasonably be expected to have a chilling effect on the open and

frank discussion of ideas, recommendations, and opinions.” Second Stein Decl. ¶ 18. More

specifically, the Department continues, disclosure “may” lead employees to “hesitate to offer

their candid opinions to supervisors or coworkers about how to draft” the letters at issue.

(emphasis added). Of course, this kind of “chilling of candid advice is exactly what the

[deliberative process] privilege seeks to prevent.” Machado Amadis, 981 F.3d at 371. But, as

the D.C. Circuit has explained, “agencies must concretely explain how disclosure ‘would’—not

‘could’—adversely impair internal deliberations.” Reps. Comm., 3 F.4th at 369–70 (quoting

Machado Amadis, 971 F.3d at 371). And that explanation must be “focused,” demonstrating

“why disclosure of the particular type of material at issue will, in the specific context of the

agency action at issue, actually impede those same agency deliberations going forward.” Id.

The Court does not pass, now, on the sufficiency of the Department’s factual showings under

13 these standards. But, should it choose to renew its request for summary judgment, the

Department must make such a “focused and concrete,” id., showing of foreseeable harm.

B. Internal strategy discussions and documents

The Court reaches the same conclusions with respect to the next category of documents

CREW challenges, which similarly includes internal State Department emails and draft

documents. Here, CREW objects to two withholding decisions: (1) redactions of emails about

“Department strategy in responding to congressional inquiries,” see Vaughn Index at 3; Second

Stein Decl. ¶ 29; and (2) redactions from emails discussing a proposed plan for resuming

information-processing activities following a government shutdown, as well as a two-page

attachment containing that draft plan, see Vaughn Index at 5; Second Stein Decl. ¶ 31.3 As

above, the Court is convinced that this material is predecisional but cannot on the current record

determine whether any or all of it is deliberative.

This set of emails is predecisional. Again, a document is predecisional if it was

“generated before the agency’s final decision on [a] matter.” U.S. Fish & Wildlife Serv., 141 S.

Ct. at 786. The Department explains that a portion of these emails relate to a meeting where

staffers from several offices discussed “strategy in responding to congressional inquiries,” as

well as specific “edits and status updates” on “proposed responses” to various requests. Second

3 Throughout its papers, CREW repeatedly refers to the draft plan as one “to resume activities in light of the COVID pandemic.” Pl.’s Reply at 6; see also Pl.’s Cross-MSJ at 15–16. But the documents at issue date from before the pandemic began, in January 2019, see Vaughn Index at 5, and must relate instead to reopening following the 35-day government shutdown in December 2018 and January 2019. Notably, CREW’s discussion of these documents contains largely atmospheric complaints about the State Department’s alleged slow-down of FOIA processing during the pandemic, rather than any legal argument. See Pl.’s Cross-MSJ at 15–16. True or not, these criticisms are irrelevant to whether the Department is entitled to withhold material about its internal processes.

14 Stein Decl. ¶ 29–30. These emails are much like the ones evaluated above, as they, too, contain

discussions of how to respond to congressional inquiries before any “final decision about how

and whether to engage in a course of action.” Vaughn Index at 3. The draft reopening plan and

emails discussing it are likewise predecisional: They “precede[d] a final Department

determination regarding whether and how” the Office of Information Programs and Services

“should resume activities.” Second Stein Decl. ¶ 32.

CREW suggests that the Department has not established the predecisional nature of the

reopening plan because there is no “indication that State did not adopt the recommendations

regarding whether and how to resume activities following the government shutdown.” Pl.’s

Reply at 6. CREW is right that, “even 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). But CREW is wrong about what the Department

must show to rebut such a claim of agency adoption. “[W]hen parties dispute whether an

otherwise predecisional and 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.” Gellman v. Dep’t of Homeland Sec.,

, 7 (D.D.C. 2021) (Cooper, J.);

see also Elec. Priv. Info. Ctr. v. Dep’t of Just.,

(D.D.C. 2008) (requester

must provide evidence that agency “actually adopted or incorporated by reference the document

at issue”). CREW here offers “mere speculation” on the question of adoption, which is

insufficient to carry its burden. Elec. Priv. Info. Ctr.,

.

But, as with the emails discussed above, the Court cannot on this record determine if the

redacted emails and withheld attachment are deliberative. The Department’s declaration

15 describes the material only as “discussions of internal Department processes” and “whether and

how to resume the Office’s activities.” Second Stein Decl. ¶¶ 30–31. The declaration mentions

that the emails contain some “edits” to and “status updates” regarding proposed “responses to

congressional inquiries”—the former of which seem potentially deliberative, the latter less

obviously so. Id. ¶ 30. And in general, the Department asserts that these documents are

deliberative only because they “reflect the give-and-take of preliminary views” on each subject.

Id. ¶ 32. Once again, the Department has failed to offer the information that the D.C. Circuit has

indicated is needed to determine whether the documents are deliberative, including the roles and

relative positions of the senders and recipients of the emails; details of the specific

decisionmaking process; and the way the redacted material aided in that process. Jud. Watch,

.

For the same reasons discussed already, the Court will therefore deny both parties

summary judgment as to these documents without prejudice. The Court will likewise defer any

consideration of the Department’s compliance with the FOIA Improvement Act and its

segregability obligations. As with the first set of material, the Department should reevaluate

whether these redactions continue to be covered by the deliberative process privilege under the

D.C. Circuit’s recent guidance. If it believes they are, the Department may submit a more

detailed declaration alongside a renewed motion for summary judgment.

C. Excerpts from document-processing status report

The final redactions that the State Department made, and that CREW challenges, appear

in a document titled “IPS Weekly Activities Report and Quick Statistics for May 30, 2019.”

Vaughn Index at 2. This document is a weekly report summarizing, among other things, the

Office of Information Programs and Services’ progress processing various FOIA and

16 congressional document requests.

Most of the twelve lines redacted from the report contain

simple statistics: the total number of documents and pages that one portion of the Department—

the Congressional Document Production branch—sent along to another—the Bureau of

Legislative Affairs—for potential production to various congressional committees. Second Stein

Decl. ¶ 24. The Department redacted the number of documents and pages transmitted in

response to several specific congressional inquiries, as well as the total number sent along for

2019 and the previous two calendar years.

The Department also redacted a single sentence

describing the “preliminary status” of another State Department office’s efforts to respond to a

document request. Vaughn Index at 2. CREW contends that these redactions are improper

because the “number” of “potentially responsive” pages and “status” updates on various

document requests are “purely factual” and therefore not exempt under the deliberative process

privilege. See Pl.’s Cross-MSJ at 13–15. CREW also argues that the redactions, even if covered

by the privilege, cannot be withheld under the FOIA Improvement Act. The Court largely

agrees.

To begin, CREW apparently does not contest that the redacted material is predecisional.

The Department asserts that it is because it “relates to preliminary assessments made by

Department subcomponents” about the “number of pages and of documents” that were

potentially responsive to external document requests—assessments that preceded the final

decision and remained subject to change. Second Stein Decl. ¶ 25. Because this status report

does not “communicat[e] the agency’s settled position,” U.S. Fish & Wildlife Serv., 141 S. Ct. at

786, on whether any potentially responsive documents should in fact be produced, and because

CREW does not challenge this point, the Court will accept that the material is predecisional.

17 The problem for the State Department is that the redacted information is neither itself

deliberative, nor the type of factual material that can be shielded by the deliberative process

privilege. In its opening brief, the Department seemingly conceded the factual nature of the

redactions, but argued that they were nevertheless subject to the privilege because they would

“necessarily reveal the agency’s deliberative process, by allowing for a comparison with the final

number of documents determined by the agency to be responsive.” Def.’s MSJ at 9. In its

response brief, the Department changed tack. It now suggests that these preliminary assessments

and status updates are themselves “deliberative information” because they “‘reflect[] [State’s]

preliminary positions or ruminations about how to exercise discretion regarding whether and

how to’ release documents to Congress.” Def.’s Resp. & Reply at 5, 7 (quoting Heffernan v.

Azar,

, 18 (D.D.C. 2019)). However framed, the Department’s arguments miss

the mark.

The material withheld from the IPS Weekly Activities Report is not inherently

deliberative. “[T]he key to whether a document is deliberative is whether it is part of the ‘give-

and-take’ of the ‘consultative process.’” Reps. Comm.,

(quoting Machado

Amadis, 971 F.3d at 370). The Department contends that the redacted numbers themselves are

deliberative because they represent, in effect, a tally of every time the Congressional Document

Production branch evaluated a document and deemed it potentially worthy of production. Def.’s

Resp. & Reply at 7. In that way, the Department suggests, the numbers are comparable to an

initial cost estimate, which, the D.C. Circuit has noted, exhibits “a surface precision,” but in fact

“deriv[es] from a complex set of judgments.” Quarles v. Dep’t of Navy,

, 392–93

(D.C. Cir. 1990)). The Court doubts that the same complex set of judgments are at play here.

Rather, each of the CDP’s assessments seems to be binary—responsive or not. And once those

18 individual determinations are divorced from the specific documents at issue, the Court struggles

to see what deliberative judgment can be gleaned from the total.

More to the point, the Department never explains the role the numbers here play in any

consultative process. In Quarles, the numbers at issue—cost estimates for proposals to establish

a “homeport” for a Navy battleship group—had been produced by a naval “special study team,”

and were used by the Secretary of Defense to decide among various options.

.

Here, by contrast, the Department described the underlying report only as a “summar[y of] the

status of ongoing document requests being processed” by the office. Second Stein Decl. ¶ 22.

State has not explained who received these status reports, nor how they used the specific material

withheld—which included both ongoing updates and historical data—in any decisionmaking

process. The numbers, then, appear to be more “snapshots that seemingly function as factual

updates,” without “any relation to a consultative process.” Cause of Action Inst. v. Exp.-Imp.

Bank of the U.S.,

, 83 (D.D.C. 2021).

For similar reasons, the Court rejects the Department’s contention that it may

nevertheless invoke the deliberative process privilege, even if the material is indeed factual. To

be sure, in some cases factual material may still be protected by the deliberative process

privilege. Courts will allow withholding of factual material “culled . . . from [a] much larger

universe of facts,” such that it “reflect[s] an exercise of judgment.” Ancient Coin Collectors

Guild v. U.S. Dep’t of State,

(D.C. Cir. 2011) (internal quotation marks

omitted). Likewise, factual material may be withheld if its disclosure “would so expose the

deliberative process that it must be covered.” Elec. Frontier Found. v. U.S. Dep’t of Just.,

(D.C. Cir. 2014).

19 Although the Department tries to shoehorn this report into both rubrics, neither applies.

First, the Department suggests that that the numbers redacted from the IPS Weekly Report,

although “expressed in quantitative terms, . . . are nonetheless opinions rather than facts” because

they reflect one office’s judgment as to how many documents should be released. Def.’s Resp.

& Reply at 7 (quoting SMS Data Prod. Grp., Inc. v. U.S. Dep’t of Air Force, No. 88-cv-481,

, at *2 (D.D.C. Mar. 31, 1989)). This argument merely repackages the claim

that the status updates are themselves deliberative, which the Court has already rejected.

Moreover, the D.C. Circuit has cautioned that “the fact/opinion test . . . must not be applied

mechanically . . . because the privilege serves to protect the deliberative process itself, not

merely documents containing deliberative material.” Mapother v. Dep’t of Just.,

(D.C. Cir. 1993). The redacted material here played no apparent role in any deliberative

give-and-take, so it is not opinion shielded from disclosure. Second, the Department asserts that

disclosure of the twelve redacted lines in this status report would “necessarily reveal the

Department’s deliberative process leading up to final release determinations.” Def.’s Resp. &

Reply at 6–7. But again, the Court does not see what these aggregated and out-of-context

updates could meaningfully reveal about any deliberative process. For that reason, the Court

concludes that the redactions are not deliberative.

Even if the redacted material here is deliberative, the Department has not met its burden

to justify withholding it under the FOIA Improvement Act. Congress enacted the FOIA

Improvement Act’s “distinct foreseeable harm requirement” in part out of “particular[] concern[]

with increasing agency overuse and abuse of Exemption 5 and the deliberative process

privilege.” Reps. Comm.,

. To carry this burden with respect to the IPS Weekly

Report redactions, the Department must provide “a focused and concrete demonstration of why”

20 their disclosure “will, in the specific context of the agency action at issue, actually impede those

same agency deliberations going forward.’”

. The Department’s explanation here,

however, is all either boilerplate or speculation. It first suggests that releasing this information

“could reasonably be expected to chill the open and frank discussion between Department

subcomponents regarding how to process potentially responsive documents.” Second Stein

Decl. ¶ 26. The Court must reject such a “cookie-cutter,” “unparticularized” assertion. Reps.

Comm.,

. The Department more specifically suggests that, were this type of status

report made fully public, Department officials would “refuse to allow employees to provide such

information” in future status reports, making it more difficult to “track[] the status of such

requests,” leading inevitably to “backlogs” and a slow down in processing and production.

Second Stein Decl. ¶ 26. Although this projected harm is more specific, the Court finds it

wholly speculative, attenuated, and unconvincing, and therefore insufficient to carry the

Department’s burden. See Reps. Comm.,

(“Agencies cannot rely on ‘mere

speculative or abstract fears or fear of embarrassment’ to withhold information.” (quoting S.

Rep. No. 4, 114th Cong., 1st Sess. 8 (2015)). As a result, the Court finds that the redacted

material—even if deliberative—would not result in any foreseeable harm if released, and so will

order the Department to do so.

21 IV. Conclusion

For the foregoing reasons, the Court will deny the Defendant’s motion for summary

judgment—in part without prejudice—and will grant in part and deny without prejudice in part

CREW’s cross-motion for summary judgment. A separate Order shall accompany this

memorandum opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: February 11, 2022

22