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Case TitleCAMPAIGN LEGAL CENTER v. UNITED STATES DEPARTMENT OF JUSTICE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2018cv01771
Date Filed2018-07-30
Date ClosedOpen
JudgeJudge Tanya S. Chutkan
PlaintiffCAMPAIGN LEGAL CENTER
Case DescriptionThe Campaign Legal Center submitted a FOIA request to the Department of Justice for records pertaining to a request from Arthur Gary, General Counsel of the Justice Management Division, to the Census Bureau asking it to add a citizenship question to the 2020 Census form. CLC also requested expedited processing. The agency acknowledged receipt of the request and granted CLC's request for expedited processing. After hearing nothing further from the agency, CLC filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantUNITED STATES DEPARTMENT OF JUSTICE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Complaint attachment 6
Complaint attachment 7
Complaint attachment 8
Opinion/Order [29]
FOIA Project Annotation: Judge Tanya Chutkan has ruled that the Department of Justice failed to conduct an adequate search for records concerning the request from Commerce Secretary Wilbur Ross to include a citizenship question on the 2020 census form and has both accepted and rejected Exemption 5 (privileges) claims made by various DOJ components in responding to requests from the Campaign Legal Center. After media reports indicated that Ross had asked then Attorney General Jeff Sessions to provide a legal justification for including the citizenship question on the 2020 census. CLC submitted a request to the Civil Rights Division (CRT), the Justice Management Division (JMD), and the Office of the Attorney General (OAG) for records concerning Ross' request for the citizenship question. The CRT referred the request to its Voting Section and searched the Office of the Assistant Attorney General (OAAG) as well. OAAG indicated that John Gore, a deputy assistant attorney general, who had worked on the citizenship question issue, was the only person likely to have responsive records. His email account was searched using the term "census." The CRT disclosed 69 pages in full or in part and withheld 42 pages in full under Exemption 5 and Exemption 6 (invasion of privacy). The CRT subsequently released an additional 114 pages that had been inadvertently overlooked. It also processed 16 pages referred by the Office of Information Policy (OIP), releasing 12 pages in full and withholding two pages under Exemption 5. OIP processed the request for the OAG. CLC agreed to limit the number of search terms. OIP located 219 pages of responsive records and processed an additional 70 pages referred by JMD. Of those 289 pages, OIP withheld 91 pages in full and 21 in part under Exemption 5. JMD disclosed 116 pages with redactions and withheld five draft letters attached to responsive emails. CLC challenged the agencies' searches as well as its exemption claims. Chutkan agreed with CLC that the search conducted by the CRT was insufficient since it was limited to the term "census." Chutkan pointed out that "this court is mindful that an agency has discretion in how it conducts a FOIA search, and that 'in general, a FOIA petitioner cannot dictate the terms for his or her FOIA request.' But an agency's discretion 'is not boundless; the search terms selected must pass muster under a standard of reasonableness.' DOJ's use of a single search term for all the digital records does not pass muster under that standard. It is likely that responsive digital documents exist which do not have the word 'census' in them." Chutkan also rejected CRT's Exemption 5 claims. CRT withheld 23 pages of email correspondence dealing with notifying Congress of DOJ's request for a census citizenship question under the presidential communication privilege. Chutkan, however, pointed out that "DOJ does not assert, for example, that the President was involved in the communications or that the President viewed any of the documents related to the communications or that the communications related to advice to be given to the President." She observed that "absent these assertions, the privilege does not apply." CRT withheld a draft letter and emails pertaining to the draft letter. Chutkan indicated that the agency had failed to show that the letters were pre-decisional. She noted that "the letter at issue did not involve discretion about an agency position or about the primary reasons for the agency position. The agency's position and the reasons for the letter had already been decided." She added that "the draft was not provided to supervisors to help them make a decision. The decision had already been made and the supervisors were reviewing Gore's implementation of it." Chutkan agreed with other district court judges in the D.C. Circuit that press inquiries qualified for the deliberative process privilege if they were both pre-decisional and deliberative. Here, she noted that "the documents are pre-decisional because they were created before the agency responded to a press inquiry, and they are deliberative because they are 'part of the agency give-and-take of the deliberative process by which the decision itself is made.'"
Issues: Adequacy - Search
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-07-301COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-5611117) filed by CAMPAIGN LEGAL CENTER. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Summons, # 8 Civil Cover Sheet with Notice of Related Case)(Miller, Adam) (Entered: 07/30/2018)
2018-07-302LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CAMPAIGN LEGAL CENTER (Miller, Adam) (Entered: 07/30/2018)
2018-07-303NOTICE OF RELATED CASE by CAMPAIGN LEGAL CENTER. Case related to Case No. 18-1187. (sth) (Entered: 07/31/2018)
2018-07-30Case Assigned to Judge Tanya S. Chutkan. (zsth) (Entered: 07/31/2018)
2018-07-314SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zsth) (Entered: 07/31/2018)
2018-08-075RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/1/2018. Answer due for ALL FEDERAL DEFENDANTS by 8/31/2018. (Miller, Adam) (Entered: 08/07/2018)
2018-08-076RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 08/01/2018. (Miller, Adam) (Entered: 08/07/2018)
2018-08-077RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 8/1/2018 (Miller, Adam) (Entered: 08/07/2018)
2018-08-308NOTICE of Appearance by Joshua M. Kolsky on behalf of UNITED STATES DEPARTMENT OF JUSTICE (Kolsky, Joshua) (Entered: 08/30/2018)
2018-08-309ANSWER to Complaint by UNITED STATES DEPARTMENT OF JUSTICE.(Kolsky, Joshua) (Entered: 08/30/2018)
2018-08-31MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. The requirements of LCvR 16.3 and Rule 26(f) of the Federal Rules of Civil procedure appear to be inapplicable. IT IS HEREBY ORDERED that the parties shall meet and confer and propose a schedule for proceeding in this matter. The schedule shall address the status of Plaintiff's FOIA request, the anticipated number of documents responsive to Plaintiff's FOIA request, the anticipated date(s) for release of the documents requested by Plaintiff, whether a motion for an Open America stay is likely in this case, whether a Vaughn index will be required in this case, whether and when either party anticipates filing a dispositive motion, and any other pertinent issues. The parties shall file a joint status report that addresses these issues and that contains a proposed schedule and proposed order no later than 9/28/18. Signed by Judge Tanya S. Chutkan on 8/31/8. (DJS) (Entered: 08/31/2018)
2018-08-31Set/Reset Deadlines: Joint Status Report due by 9/28/2018. (tb) (Entered: 08/31/2018)
2018-09-0410NOTICE of Appearance by Danielle M. Lang on behalf of CAMPAIGN LEGAL CENTER (Lang, Danielle) (Entered: 09/04/2018)
2018-09-05Set/Reset Deadlines: Joint Status Report due by 9/28/2018. (tb) (Entered: 09/05/2018)
2018-09-2811Joint STATUS REPORT by CAMPAIGN LEGAL CENTER. (Attachments: # 1 Exhibit Exhibit A - Declaration of Joseph F. Klimavicz, # 2 Exhibit Exhibit B - CLC Proposed Order, # 3 Exhibit Exhibit C - DOJ Proposed Order)(Miller, Adam) (Entered: 09/28/2018)
2018-10-24MINUTE ORDER: A Status Conference is hereby set for 10/31/18 at 10:30 am in Courtroom 9. Signed by Judge Tanya S. Chutkan on 10/24/18. (DJS) (Entered: 10/24/2018)
2018-10-25Set/Reset Hearings: Status Conference set for 10/31/2018 at 10:30 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 10/25/2018)
2018-10-2612NOTICE of Appearance by Nadav Ariel on behalf of CAMPAIGN LEGAL CENTER (Ariel, Nadav) (Entered: 10/26/2018)
2018-10-31Minute Entry for proceedings held before Judge Tanya S. Chutkan: Status Conference held on 10/31/2018. The Court directed the parties to submit a Joint Status Report on or before December 17, 2018. (Order forthcoming.) (Court Reporter Bryan Wayne.) (tg) Modified to add deadline on 10/31/2018 (tg). (Entered: 10/31/2018)
2018-10-31Set/Reset Deadlines: Joint Status Report due by 12/17/2018. (tg) (Entered: 10/31/2018)
2018-10-31MINUTE ORDER: Having considered the parties' Joint Status Report 11 and the updates provided at the October 31, 2018 Status Conference, the parties are ordered to adhere to the following deadlines. With respect to the FOIA requests made to the Justice Management Division, the 170 pages that were referred to the Office of Information Policy, the 40 pages that were referred to the Department of Commerce, and 5 pages that were referred to the Census Bureau shall be processed and produced on or before December 12, 2018. Further, the status report, due on or before December 17, 2018, shall include, but not necessarily be limited to, the following: (1) an update on the production due on or before December 12, 2018; (2) an update on whether the searches that are scheduled to be rerun in the next three months are duplicative of Plaintiff's requests; (3) an update on whether the fact that the instant request was granted expedited processing should result in it advancing in the queue; (4) a production schedule for the documents that are responsive to the requests made to the Office of the Attorney General; and (5) a proposed status conference date. In addition, the parties are directed to file, three days before the next status conference, a proposed summary judgment briefing schedule. Signed by Judge Tanya S. Chutkan on 10/31/2018. (lctsc1) (Entered: 10/31/2018)
2018-12-1713Consent MOTION for Extension of Time to File Joint Status Report by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Kolsky, Joshua) (Entered: 12/17/2018)
2018-12-17MINUTE ORDER: Granting 13 Motion for Extension of Time to File to File Joint Status Report. Joint Status and proposed order due 1/5/19. Signed by Judge Tanya S. Chutkan on 12/17/18. (DJS) (Entered: 12/17/2018)
2018-12-19Set/Reset Deadlines: Joint Status Report due by 1/5/2019. (tb) (Entered: 12/19/2018)
2018-12-2114ENTERED IN ERROR. . . . .NOTICE OF SUBSTITUTION OF COUNSEL by Paul Cirino on behalf of UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Joshua M. Kolsky (Cirino, Paul) Modified on 1/4/2019 (ztd). (Entered: 12/21/2018)
2019-01-04NOTICE OF ERROR re 14 Substitution of Counsel; emailed to paul.cirino@usdoj.gov, cc'd 9 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect header/caption/case number, 2. Please refile document, 3. Document has the incorrect case number (ztd, ) (Entered: 01/04/2019)
2019-01-0715MOTION to Stay in Light of Lapse in Appropriations by UNITED STATES DEPARTMENT OF JUSTICE (Cirino, Paul) (Entered: 01/07/2019)
2019-01-0716RESPONSE re 15 MOTION to Stay in Light of Lapse in Appropriations filed by CAMPAIGN LEGAL CENTER. (Ariel, Nadav) (Entered: 01/07/2019)
2019-01-2417NOTICE of Change of Law Firm Name by CAMPAIGN LEGAL CENTER (Ariel, Nadav) (Entered: 01/24/2019)
2019-01-2818NOTICE OF SUBSTITUTION OF COUNSEL by Paul Cirino on behalf of UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Joshua Kolsky (Cirino, Paul) (Entered: 01/28/2019)
2019-02-1519Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order (Plaintiff's Proposal), # 2 Text of Proposed Order (Defendant's Proposal))(Cirino, Paul) (Entered: 02/15/2019)
2019-02-19MINUTE ORDER: Having considered the parties' February 15, 2019 Joint Status Report 19 , the parties are ordered to adhere to the following deadlines. With respect to Plaintiff's request for records of the Office of the Attorney General, Defendant shall complete its production of non-exempt responsive records by March 29, 2019. And on or before April 5, 2019, the parties shall file a status report, which includes a proposed summary judgment briefing schedule. A status conference is set for April 11, 2019 at 11:00 a.m., in Courtroom 9. Further, the motion 15 to stay is TERMINATED as moot. Signed by Judge Tanya S. Chutkan on 2/19/2019. (lctsc1) (Entered: 02/19/2019)
2019-02-21Set/Reset Deadlines/Hearings: Status Report due by 4/5/2019. Status Conference set for 4/11/2019 at 11:00 AM in Courtroom 9 before Judge Tanya S. Chutkan. (tb) (Entered: 02/21/2019)
2019-04-0520Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Cirino, Paul) (Entered: 04/05/2019)
2019-04-11Minute Entry: Status Conference held on 4/11/2019 before Judge Tanya S. Chutkan: Cross Motion due by 5/22/2019. Response to Cross Motion due by 6/5/2019. Reply to Cross by 6/12/2019. Summary Judgment motion due by 5/8/2019. Response to Motion for Summary Judgment due by 5/22/2019. Reply to Motion for Summary Judgment due by 6/5/2019. (Court Reporter Scott Wallace) (tb) (Entered: 04/12/2019)
2019-04-17MINUTE ORDER: Defendant's Motion for summary judgment due by 5/8/2019. Plaintiff's combined response/cross-motion for summary judgment due by 5/22/2019. Defendant's combined reply/response due 6/5/2019. Plaintiff's reply due by 6/12/2019. Signed by Judge Tanya S. Chutkan on 4/17/19. (DJS) Modified on 4/18/2019 (tb). (Entered: 04/17/2019)
2019-04-3021NOTICE of Change of Address by Nadav Ariel (Ariel, Nadav) (Entered: 04/30/2019)
2019-05-0822MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Declaration of Michael H. Allen (with JMD Vaughn Index), # 4 Declaration of Vanessa R. Brinkmann (with Exhibits and OIP Vaughn Index), # 5 Declaration of Tink Cooper, # 6 Exhibits A-G to Cooper Declaration, # 7 Exhibits H-L to Cooper Declaration, # 8 Civil Rights Division Vaughn Index, # 9 Text of Proposed Order)(Cirino, Paul) (Entered: 05/08/2019)
2019-05-2223RESPONSE re 22 MOTION for Summary Judgment filed by CAMPAIGN LEGAL CENTER. (Attachments: # 1 Declaration of Nadav Ariel, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Text of Proposed Order)(Ariel, Nadav) (Entered: 05/22/2019)
2019-05-2224Cross MOTION for Summary Judgment by CAMPAIGN LEGAL CENTER (Attachments: # 1 Declaration of Nadav Ariel, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 17, # 18 Text of Proposed Order)(Ariel, Nadav) (Entered: 05/22/2019)
2019-06-0525REPLY to opposition to motion re 22 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration (Second) of Vanessa R. Brinkmann, # 2 Declaration (Supplemental) of Tink Cooper, # 3 Response to Plaintiff's Statement of Undisputed Facts)(Cirino, Paul) (Entered: 06/05/2019)
2019-06-0526Memorandum in opposition to re 24 Cross MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration (Second) of Vanessa R. Brinkmann, # 2 Declaration (Supplemental) of Tink Cooper, # 3 Response to Plaintiff's Statement of Undisputed Facts, # 4 Text of Proposed Order)(Cirino, Paul) (Entered: 06/05/2019)
2019-06-1227REPLY to opposition to motion re 24 Cross MOTION for Summary Judgment filed by CAMPAIGN LEGAL CENTER. (Attachments: # 1 Declaration Declaration of N. Ariel, # 2 Exhibit Exhibit A, # 3 Exhibit Exhibit B)(Ariel, Nadav) (Entered: 06/12/2019)
2019-08-0628NOTICE OF SUPPLEMENTAL AUTHORITY by CAMPAIGN LEGAL CENTER (Ariel, Nadav) (Entered: 08/06/2019)
2020-06-0129MEMORANDUM OPINION regarding Defendant's 22 Motion for Summary Judgment and Plaintiff's 24 Motion for Summary Judgment. Signed by Judge Tanya S. Chutkan on 6/1/2020. (lcdl) (Entered: 06/01/2020)
2020-06-0130ORDER granting in part and denying in part Defendant's 22 Motion for Summary Judgment and granting in part and denying in part Plaintiff's 24 Motion for Summary Judgment. The parties shall meet and confer and file a JOINT proposal for moving forward with this case no later than July 1, 2020. See order for details. Signed by Judge Tanya S. Chutkan on 6/1/2020. (lcdl) (Entered: 06/01/2020)
2020-06-02Set/Reset Deadlines: Joint Proposal due by 7/1/2020. (tb) (Entered: 06/02/2020)
2020-06-05MINUTE ORDER: The parties' 7/1/2020 joint report shall be accompanied by a proposed order. Signed by Judge Tanya S. Chutkan on 6/5/2020. (DJS) (Entered: 06/05/2020)
2020-07-0131Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A - Defendant's Proposed Order, # 2 Exhibit B - Plaintiff's Proposed Order)(Cirino, Paul) (Entered: 07/01/2020)
2020-07-07MINUTE ORDER: Having considered the parties' Joint Status Report, it is hereby ORDERED that (1) Defendant shall conduct the Civil Rights Division's supplemental search in accordance with this court's pervious orders on or before August 14, 2020, and confer with Plaintiff no later than August 31, 2020 regarding a proposed review and production schedule; (2) Absent an appeal by Defendant, Defendant shall produce the drafts and emails related to the Gary Letter by August 31, 2020; (3) Absent an appeal by Defendant, Defendant shall produce responsive DOJ-White House communications not covered by the deliberative process privilege by August 31, 2020; and that (4) the parties shall submit a further Joint Status Report, including a proposed order, on September 1, 2020, apprising the Court of the status of the progress on the items ordered by the court on June 1, 2020, and proposing further proceedings as appropriate. Signed by Judge Tanya S. Chutkan on 7/7/2020. (lcdl) (Entered: 07/07/2020)
2020-07-08Set/Reset Deadlines: Joint Status Report due by 9/1/2020. (tb) (Entered: 07/08/2020)
2020-07-3132NOTICE OF APPEAL TO DC CIRCUIT COURT as to 29 Memorandum & Opinion, 30 Order on Motion for Summary Judgment,,, by UNITED STATES DEPARTMENT OF JUSTICE. Fee Status: No Fee Paid. Parties have been notified. (Cirino, Paul) (Entered: 07/31/2020)
2020-07-3133ENTERED IN ERROR. . . . .Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 32 Notice of Appeal to DC Circuit Court. (ztd) (Main Document 33 replaced on 7/31/2020) (ztd). Modified on 8/4/2020 (ztd). (Entered: 07/31/2020)
2020-07-31USCA Case Number 20-5233 for 32 Notice of Appeal to DC Circuit Court filed by UNITED STATES DEPARTMENT OF JUSTICE. (zrdj) (Entered: 08/04/2020)
2020-08-0434Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 32 Notice of Appeal to DC Circuit Court. (ztd) (Entered: 08/04/2020)
2020-09-0135Joint STATUS REPORT by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Exhibit A - Defendant's Proposed Order, # 2 Exhibit B - Plaintiff's Proposed Order)(Cirino, Paul) (Entered: 09/01/2020)
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