Am. Ctr. for Law & Justice v. U.S. Dep't of Justice
Am. Ctr. for Law & Justice v. U.S. Dep't of Justice
Opinion of the Court
In this action brought under the Freedom of Information Act, American Center for Law and Justice (ACLJ) seeks records from the Department of Justice relating to a June 2016 meeting between then-Attorney General Loretta Lynch and former President Bill Clinton that took place on an airplane in Arizona. The parties' dispute centers on redactions made to documents discussing how to handle press inquiries about the meeting, and in particular the Department's withholding of "talking points" prepared for Attorney General Lynch. The parties previously cross-moved for summary judgment, and the Court granted judgment for the Department on all documents except two for which the Court determined it lacked sufficient context. The Court ordered the parties to file renewed motions for summary judgment on those documents.
Upon review of those new submissions, and for largely the same reasons described in its prior opinion, the Court will grant the Department's motion, deny ACLJ's cross-motion, and enter judgment for the Department.
I. Background
ACLJ submitted its request at issue here under the Freedom of Information Act (FOIA),
Over the course of about a year, the Department made several productions of responsive documents, withholding some documents in whole or in part under FOIA's enumerated exemptions.
The Court granted summary judgment for the Department in part. It concluded that the Department properly withheld in whole or in part nine of the disputed documents under FOIA's exemption for materials covered by the deliberative-process privilege.
II. Legal Standard
Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment 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). In determining whether a genuine dispute of material fact exists, the reviewing court must "view[ ] the evidence in the light most favorable to the non-movants and draw[ ] all reasonable inferences accordingly." Lopez v. Council on Am.-Islamic Relations Action Network, Inc. ,
"FOIA 'mandates that an agency disclose records on request, unless they fall within one of nine exemptions.' " Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. (EPIC) ,
FOIA also requires that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt."
III. Analysis
In its renewed motion, the Department represents that it voluntarily released the June 30 email chain to ACLJ. See ECF No. 30-1 ("Def.'s MSJ Br.") at 1; ECF No. 30-3 ("Brinkmann Decl.") ¶ 6. Thus, the only document still at issue is the withheld attachment to the July 11 email, titled "Top Line TPs (Final)." See ECF No. 25-2 at 20-23. The Department withheld the attachment under Exemption 5 and the deliberative-process privilege, explaining that it consists of three pages of talking points prepared for Attorney General Lynch, and it maintains that it contains no non-deliberative portion that could reasonably be segregated. See Brinkmann Decl. ¶¶ 7, 9. The Court will address the applicability of the exemption and the Department's representations about segregability in turn.
A. Exemption 5
The Department invokes the deliberative-process privilege, codified by Exemption 5, to justify withholding the entire attachment to the July 1 email. See ECF No. 25-2 at 20-23; Def.'s MSJ Br. at 1. The email itself, released in full and containing no text in its body, was sent by an employee in the Department's Office of Legislative Affairs to staff in the Office of the Attorney General. See ECF No 25-2 at 20; Brinkmann Decl. ¶ 7. In its initial filings, the Department provided no specific description of that attachment, and unlike the other withheld records, the Court could glean nothing about it from the record. See ACLJ ,
Relying on the Court's conclusions in its prior opinion, the Department contends that this attachment, like the other sets of talking points prepared by junior staffers for more senior officials that the Court found the Department could properly withhold, is protected by the deliberative-process privilege. See Def.'s MSJ Br. at 2. The Court agrees.
Before examining whether the privilege covers the document at issue, the Court briefly recounts relevant portions of its prior opinion relating to Exemption 5 and the deliberative-process privilege. "The deliberative process privilege protects agency documents that are both predecisional and deliberative." Judicial Watch, Inc. v. Food & Drug Admin. ,
In granting partial summary judgment for the Department, the Court held that the Department properly withheld "various iterations of a set of talking points prepared for Attorney General Lynch, who used them in a June 28[,] [2016,] press conference."
Upon consideration of the additional context provided by the Department in its renewed motion, the Court finds that the withheld attachment also falls within the ambit of the deliberative-process privilege and Exemption 5. The Department official represents that these talking points were prepared by Department staff for Attorney General Lynch in anticipation of her future interactions with the public and the press about her announcement that she was accepting the FBI's recommendation to close the investigation into former Secretary of State Hillary Clinton. Brinkmann Decl. ¶ 7. And so, like the other sets of talking points withheld by the Department, the attachment constitutes a recommendation by subordinates to their superior advising her how to respond to inquiries. It is, in that respect, both predecisional and deliberative, reflecting a part of the give-and-take between the drafter and the Attorney General leading up to her external interactions. See ACLJ ,
In response, ACLJ insists that the Department has not provided enough context for the Court to determine whether the withheld talking points remain protected under the privilege. See ECF No. 31-1 ("Pl.'s MSJ Br.") at 3. It argues that "the agency fails to explain whether a superior reviewed and approved the final draft forwarded by staff in the attached email; whether the memorandum was reviewed and used by the Attorney General; whether it was followed closely ... [;] and/or how it has been used in dealings with the public."
To begin with, it is not entirely clear what "superior[s]" ACLJ is referring to, and, in any event, how that information would alter the analysis. As the Department official declares, and the unredacted email confirms, these draft talking points were sent directly to the Office of the Attorney General "for her use." Brinkmann Decl. ¶ 7; see also ECF No. 25-2 at 20. To the extent that other intermediaries were involved before the Attorney General-and there is no indication from the record, including the results of the Department's search, that that was the case-the recommended talking points would remain just that: recommendations to the Attorney General.
As to whether the Attorney General ultimately relied on the talking points when interacting with the public and the press, the Court holds, as it did in its prior opinion, that any such reliance does not defeat the privilege here. According to the Department, the draft talking points contain "proposed " responses to the public about certain topics, including Attorney General Lynch's meeting with President Clinton. Brinkmann Decl. ¶ 7 (emphasis added). But "[t]he final decision was what Attorney General Lynch actually said to the [public and the] media, which is, of course, already a matter of public record." ACLJ ,
For all these reasons, the Court finds that the deliberative-process privilege protects the attachment at issue, and thus the *108Department properly withheld it under Exemption 5.
B. Segregability
Turning to FOIA's segregability requirement, the Department has withheld the three-page set of talking points in full, finding that the document contains no reasonably segregable material. See Brinkmann Decl. ¶ 9. But ACLJ argues that the Department has failed to provide the Court with sufficient explanation of that decision, insisting that the Department must state with more particularity the proportion of the information in the talking points that is non-exempt. See Pl.'s MSJ Br. at 4.
In its prior opinion, the Court concluded that the Department's representation that it conducted a line-by-line review of each withheld document, along with its explanation that the "factual content [contained in the withheld talking points and press statements] was generally intertwined with the advice being given and thus could not be segregated," was enough to trigger a presumption in favor of the Department's compliance with FOIA's segregability requirement. ACLJ ,
IV. Conclusion
For all these reasons, the Court will, by separate order, grant Defendant's Renewed Motion for Summary Judgment, ECF No. 30, deny Plaintiff's Cross-Motion for Summary Judgment, ECF No. 31, and enter judgment for Defendant.
That is not to say that proposed talking points may never be adopted by the agency "as its own" such that they lose their privilege. Such a case may arise, for instance, when the "talking points represent the final, settled 'party line,' " and are circulated to employees of the agency accordingly. Judicial Watch, Inc. v. U.S. Dep't of State ,
ACLJ's appeal to Juarez v. Department of Justice ,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.