Case Detail

FOIA Project Annotation: A federal court in California has ruled that the U.S. International Development Finance Corporation failed to justify its Exemption 5 (privileges) claims to withhold records concerning a failed attempt to loan Eastman Kodak $765 million so that the company could manufacture ingredients for COVID-19 drugs. After the deal fell through, NPR producer Tom Dreisbach filed a FOIA request for three categories of records related to the loan to Kodak. The agency withheld records under the deliberative process privilege, including an op-ed the agency published in the New York Post announcing its loan to Kodak. NPR argued that the op-ed was not predecisional. The court agreed, noting that "here, DFC's draft op-eds do not aid it in making any policy decisions and are therefore not 'predecisional' for purposes of the deliberative process privilege." The agency argued that the draft op-eds should be subject to the deliberative process privilege. But the court pointed out that "in light of Lahr and Maricopa Audubon Society, courts in the Ninth Circuit have repeatedly reached the opposite conclusion, finding that it is only when the agency is deliberating substantive policy decisions that the deliberative process privilege applies and refusing to apply the privilege when the deliberations do not proceed policymaking." The court added that "DFC cites to other courts, many of them in the D.C. Circuit, that regularly exempt from FOIA disclosure requirements agency documents related to public messaging. To the extent there is a split of authority between the Ninth Circuit and the D.C. Circuit, this Court should follow the circuit by which it is bound. In this circuit, the purpose of the deliberative process privilege is not to protect government information in general but to protect 'frank discussion of legal or policy matters' in particular from public disclosure. By DFC's own admission, the documents in [dispute] had nothing to with the process of formulating a policy or decision within DFC's purview; they had to do with deciding how to announce a policy decision already made. In the Ninth Circuit, this observation is fatal to the viability of the deliberative process privilege, and FOIA therefore mandates disclosure of these documents." Addressing another category, the court found not only that the deliberative process privilege applied but that the agency had justified its foreseeable harm claims. The court observed that "DFC can make better policy when its employees are free to bring topics to their policymaking meetings for discussion and deliberation without fear that the unpolished, unvetted results of their efforts will one day be open to public scrutiny. In describing these two agendas and the harm that would result from disclosure, DFC makes a sufficient showing of foreseeable harm."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2020-09-10	1	COMPLAINT Receipt No: ACACDC-28026575 - Fee: $400, filed by Plaintiffs National Public Radio, Inc., Tom Dreisbach. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Attorney Thomas Rohlfs Burke added to party Tom Dreisbach(pty:pla), Attorney Thomas Rohlfs Burke added to party National Public Radio, Inc.(pty:pla))(Burke, Thomas) (Entered: 09/10/2020)
2020-09-10	2	CIVIL COVER SHEET filed by Plaintiffs Tom Dreisbach, National Public Radio, Inc.. (Burke, Thomas) (Entered: 09/10/2020)
2020-09-10	3	Request for Clerk to Issue Summons on Complaint (Attorney Civil Case Opening), 1 filed by Plaintiffs Tom Dreisbach, National Public Radio, Inc.. (Burke, Thomas) (Entered: 09/10/2020)
2020-09-10	4	NOTICE of Interested Parties filed by Plaintiffs Tom Dreisbach, National Public Radio, Inc., (Burke, Thomas) (Entered: 09/10/2020)
2020-09-10	5	CORPORATE DISCLOSURE STATEMENT filed by Plaintiff National Public Radio, Inc. (Burke, Thomas) (Entered: 09/10/2020)
2020-09-11	6	NOTICE OF ASSIGNMENT to District Judge Otis D. Wright, II and Magistrate Judge Jacqueline Chooljian. (esa) (Entered: 09/11/2020)
2020-09-11	7	NOTICE TO PARTIES OF COURT-DIRECTED ADR PROGRAM filed. (esa) (Entered: 09/11/2020)
2020-09-11	8	21/60 DAY Summons issued re Complaint 1 as to defendant U.S. International Development Finance Corporation. (esa) (Entered: 09/11/2020)
2020-10-14	9	NOTICE of Appearance filed by attorney Amy Powell on behalf of Defendant U.S. International Development Finance Corporation (Attorney Amy Powell added to party U.S. International Development Finance Corporation(pty:dft))(Powell, Amy) (Entered: 10/14/2020)
2020-10-14	10	ANSWER to Complaint (Attorney Civil Case Opening), 1 filed by Defendant U.S. International Development Finance Corporation.(Powell, Amy) (Entered: 10/14/2020)
2020-10-14	11	NOTICE TO FILER OF DEFICIENCIES in Electronically Filed Documents RE: Answer to Complaint (Attorney Civil Case Opening) 10 by U.S. International Development Finance Corporation. The following error(s) was/were found: Local Rule 7.1-1 No Notice of Interested Parties and/or no copies. In response to this notice, the Court may: (1) order an amended or correct document to be filed; (2) order the document stricken; or (3) take other action as the Court deems appropriate. You need not take any action in response to this notice unless and until the Court directs you to do so. (lc) (Entered: 10/14/2020)
2020-10-15	12	MINUTE ORDER IN CHAMBERS by Judge Otis D Wright, II: This action has been assigned to the calendar of Judge Otis D. Wright II. Counsel are STRONGLY encouraged to review the Central Districts website for additional information. The parties may consent to proceed before a Magistrate Judge appearing on the voluntary consent list. PLEASE refer to Local Rule 79-5 for the submission of CIVIL ONLY SEALED DOCUMENTS. CRIMINAL SEALED DOCUMENTS will remain the same. Please refer to the Judges procedures and schedules for detailed instructions for submission of sealed documents. (lc) (Entered: 10/15/2020)
2020-10-15	13	ORDER that the Scheduling Conference is set for February 8, 2021 1:30 PM ; compliance with FRCP 16, and 26(f) and filing of joint report; Counsel for plaintiff shall immediately serve this Order on all parties, including any new parties to the action by Judge Otis D Wright, II (lc) (Entered: 10/15/2020)
2020-10-28	14	MINUTE ORDER IN CHAMBERS by Judge Otis D. Wright, II: On October 14, 2020, Defendant U.S. International Development Finance Corporation filed its Answer to the Complaint 10 . That same day, the Clerk of Court notified Defendant that it failed to filed a Notice of Interested Parties as mandated by Local Rule 7.1-1. 11 . This required document is necessary for the Court to evaluate the potential need for recusal. The Court therefore ORDERS Market Refrigeration Specialists, Inc. to file a Notice of Interested Parties by Friday, November 6, 2020. Failure to do so will result in the Court striking its Answer to the Complaint. (lc) (Entered: 10/28/2020)
2020-10-29	15	NOTICE of Interested Parties filed by Defendant All Defendants, identifying None. (Powell, Amy) (Entered: 10/29/2020)
2020-10-30	16	NOTICE OF MOTION AND MOTION for Order for ADVANCING THE SCHEDULING CONFERENCE filed by PLAINTIFF Tom Dreisbach, National Public Radio, Inc.. Motion set for hearing on 11/30/2020 at 01:30 PM before Judge Otis D. Wright II. (Attachments: # 1 Declaration OF THOMAS R. BURKE IN SUPPORT OF MOTION TO ADVANCE SCHEDULING CONFERENCE, # 2 Proposed Order GRANTING MOTION TO ADVANCE SCHEDULING CONFERENCE) (Burke, Thomas) (Entered: 10/30/2020)
2020-11-09	17	MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Order for ADVANCING THE SCHEDULING CONFERENCE 16 filed by Defendant U.S. International Development Finance Corporation. (Attachments: # 1 Declaration of Eric T. Styles (with attachments), # 2 Declaration of Amy E. Powell (with Exhibit), # 3 Proposed Order)(Powell, Amy) (Entered: 11/09/2020)
2020-11-16	18	REPLY In Support of Plaintiffs' Motion to Advance Scheduling Conference NOTICE OF MOTION AND MOTION for Order for ADVANCING THE SCHEDULING CONFERENCE 16 filed by Plaintiffs Tom Dreisbach, National Public Radio, Inc.. (Burke, Thomas) (Entered: 11/16/2020)
2020-11-18	19	The hearing on the MOTION for Order for ADVANCING 16 , scheduled for November 30, 2020 at 1:30 P.M., is hereby VACATED and taken off calendar. No appearances are necessary. The matter stands submitted, and will be decided upon without oral argument. An order will issue.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (sce) TEXT ONLY ENTRY (Entered: 11/18/2020)
2020-11-20	20	NOTICE of Appearance filed by attorney Sarah Burns on behalf of Plaintiffs Tom Dreisbach, National Public Radio, Inc. (Attorney Sarah Burns added to party Tom Dreisbach(pty:pla), Attorney Sarah Burns added to party National Public Radio, Inc.(pty:pla))(Burns, Sarah) (Entered: 11/20/2020)
2020-12-01	21	MINUTES (IN CHAMBERS) by Judge Otis D. Wright, II: ORDER GRANTING MOTION TO ADVANCE SCHEDULING CONFERENCE 16 . The Scheduling Conference shall be RESET for December 28, 2020 at 1:30 pm. The parties are reminded that Federal Rule of Civil Procedure 26(f) requires the parties to, among other things, submit a Joint Report to the Court no less than 7 days before the Scheduling Conference. (lc) (Entered: 12/01/2020)
2020-12-16	22	JOINT REPORT Rule 26(f) Discovery Plan filed by Plaintiffs Tom Dreisbach, National Public Radio, Inc... (Burke, Thomas) (Entered: 12/16/2020)
2020-12-18	23	MINUTE ORDER In Chambers by Judge Otis D. Wright, II. Pursuant to the Court's December 1, 2020 Minute Order Granting Plaintiffs' Motion to Advance the Scheduling Conference, the Scheduling Conference in this matter is set for Monday, December 28, 2020. (Min. Order, ECF No. 21.) Now, the parties represent in their Joint Rule 26(f) Report that there is no need for a scheduling conference because this action will be resolved on summary judgment if necessary, and the parties agree to propose a briefing schedule by February 15, 2021. (Joint Rule 26(f) Report, ECF No. 22 .) Having considered the parties' proposal, the Court hereby ORDERS: The Scheduling Conference set for Monday, December 28, 2020, is hereby VACATED. The parties are ORDERED to submit a joint status report on or before February 15, 2021, to propose next steps, including a schedule for briefing summary judgment motions if necessary. Failure to timely comply with this Order may result in dismissal of the action for lack of prosecution. (lom) (Entered: 12/18/2020)
2021-02-12	24	STATUS REPORT (Joint) filed by Defendant U.S. International Development Finance Corporation. (Powell, Amy) (Entered: 02/12/2021)
2021-02-18	25	MINUTE ORDER In Chambers by Judge Otis D. Wright, II. Having considered the parties' Joint Status Report (ECF No. 24 ), the Court hereby ORDERS the following summary judgment briefing schedule: April 16, 2021 - Defendant will file a motion for summary judgment and all supporting materials; May 28, 2021 Plaintiffs will file a combined opposition and cross-motion (if any); June 18, 2021 Defendant will file a combined reply and opposition (if cross-motion is filed); July 2, 2021 Plaintiffs will file a reply in support of the cross-motion (if any). When filing its motion, Defendant shall notice a hearing date for July 19, 2021, at 1:30 p.m. The Court will determine whether the hearing remains necessary upon review of the parties' briefs. IT IS SO ORDERED. (lom) (Entered: 02/18/2021)
2021-04-14	26	Joint STIPULATION for Order Extend Briefing Schedule and Set New Hearing Date for Summary Judgment filed by Defendant U.S. International Development Finance Corporation. (Attachments: # 1 Proposed Order)(Powell, Amy) (Entered: 04/14/2021)
2021-04-15	27	MINUTE ORDER IN CHAMBERS by Judge Otis D. Wright, II: Having considered the parties' Joint Stipulation 26 , the Court hereby ORDERS the following summary judgment briefing schedule in place of the previously ordered schedule: April 30, 2021 - Defendant will file a motion for summary judgment and all supporting materials; June 11, 2021 Plaintiffs will file a combined opposition and cross-motion (if any); July 2, 2021 Defendant will file a combined reply and opposition (if cross-motion is filed); July 16, 2021 Plaintiffs will file a reply in support of the cross-motion (if any). When filing its motion, Defendant shall notice a hearing date for August 2, 2021, at 1:30 p.m. The Court will determine whether the hearing remains necessary upon review of the parties' briefs. (lc) (Entered: 04/15/2021)
2021-04-30	28	NOTICE OF MOTION AND MOTION for Summary Judgment as to all claims filed by Defendant U.S. International Development Finance Corporation. Motion set for hearing on 8/2/2021 at 01:30 PM before Judge Otis D. Wright II. (Attachments: # 1 Declaration (2nd) of E. Styles with attachments, # 2 Statement of Uncontroverted Facts and Conclusions of Law, # 3 Proposed Order) (Powell, Amy) (Entered: 04/30/2021)
2021-06-11	29	NOTICE OF MOTION AND MOTION for Summary Judgment as to PLAINTIFFS OMNIBUS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT filed by PLAINTIFF Tom Dreisbach, National Public Radio, Inc.. Motion set for hearing on 8/2/2021 at 01:30 PM before Judge Otis D. Wright II. (Attachments: # 1 Declaration OF THOMAS R. BURKE IN SUPPORT OF PLAINTIFFS' OMNIBUS OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 PLAINTIFFS' REQUEST FOR IN CAMERA REVIEW, # 7 PLAINTIFFS STATEMENT OF GENUINE ISSUES OF MATERIAL FACT, # 8 PLAINTIFFS STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW, # 9 Proposed Order) (Burke, Thomas) (Entered: 06/11/2021)
2021-07-02	30	MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION for Summary Judgment as to PLAINTIFFS OMNIBUS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT 29 and Reply Memorandum in Support of Defendant's Motion for Summary Judgment filed by Defendant U.S. International Development Finance Corporation. (Attachments: # 1 Declaration of A. Powell (Second), # 2 Defendant's Statement of Genuine Issues)(Powell, Amy) (Entered: 07/02/2021)
2021-07-16	31	REPLY In Support of Plaintiffs' NOTICE OF MOTION AND MOTION for Summary Judgment as to PLAINTIFFS OMNIBUS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT 29 filed by Plaintiffs Tom Dreisbach, National Public Radio, Inc.. (Burke, Thomas) (Entered: 07/16/2021)
2021-07-28	32	The hearing on the MOTIONS for Summary Judgment 28 29 , scheduled for August 2, 2021 at 1:30 P.M., are hereby VACATED and taken off calendar. No appearances are necessary. The matters stands submitted, and will be decided upon without oral argument. An order will issue.THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (sce) TEXT ONLY ENTRY (Entered: 07/28/2021)
2021-11-24	33	ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT 28 , 29 by Judge Otis D. Wright, II: NPR's request for in camera review is DENIED. Each Motion is therefore designated as GRANTED IN PART and DENIED IN PART. (SEE DOCUMENT FOR SPECIFICS). The Court will issue Judgment consistent with this order. (lc) (Entered: 11/24/2021)
2021-11-24	34	JUDGMENT by Judge Otis D. Wright, II: 1. Plaintiffs National Public Radio, Inc., and Tom Dreisbach shall have JUDGMENT in their favor. 2. The Court ORDERS Defendant U.S. International Development Finance Corporation to disclose to Plaintiffs, within twenty (20) days of the date of this Order,a. all material withheld pursuant to the deliberative process privilege indocument A00 1, and b. all material withheld pursuant to the deliberative process privilege in any document in Groups 1 (A005; A008; A009; A0l0; A0l 1; A012 A021), 2 (A004; A009; A0l0; A0l 1; A012), and 4 (A003; A013;A015; A017; A020). 3. All other relief requested by Plaintiffs is DENIED.This Order shall constitute the FINAL JUDGMENT of the Court. The Clerk14 of the Court shall close the case. Related to: Order on Motion for Summary Judgment 33 (MD JS-6, Case Terminated). (lc) (Entered: 11/24/2021)
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