Case Detail

FOIA Project Annotation: Judge Amy Berman Jackson has ruled that OMB properly withheld five documents under Exemption 5 (privileges) in response to a request from the Arab American Institute for records concerning whether Middle Eastern and North African would be included as a race reporting category on the 2020 Census. In response to the request, OMB located 291 responsive documents and disclosed 131 documents in full or part with redactions under the deliberative process privilege. OMB also withheld 161 documents in full under the deliberative process privilege. The Arab American Institute chose to challenge only five documents. Berman Jackson found that all five documents were both predecisional and deliberative. She noted that "because OMB has never publicly released a decision on whether to change the standards, the agency took the position that the 'decision-making process was never concluded, [and] all inter and intra-agency deliberations, regarding these matters during the time of the search qualify for the deliberative process privilege.'" However, the Arab American institute contended that the Census Bureau made a decision when it decided not to revise its race standards and that the decision not to decide constituted a final decision. However, Berman Jackson noted that "the fact that the Census Bureau did not include the category does not mean that OMB came to an end of its decision-making process on what it would recommend." She explained that "just because an agency has not made a decision does not strip records of their predecisional status." She indicated that "even if the agency had made an internal decision to maintain the status quo, the documents at issue would not lose their predecisional status because plaintiff has not shown that they have been 'adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public.'" The Arab American Institute argued that statements made by Kathleen Battle, chief of the Census Bureau's Population Division, explaining the need for additional research and testing before the Census Bureau could proceed to implement separate Middle Eastern or North African categories was evidence of the decision to maintain the status quo. But Berman Jackson observed that "this statement was made by a Census Bureau official, not an OMB official. And, in any event, the statement demonstrates the ongoing nature of the inquiry â€" Ms. Battle states that the agency had not tested the category as an ethnicity separate from race, and that research still needed to be completed before the government makes its final decision." She pointed out that "the records are draft documents that lay out various recommendations and proposals, and disclosure of these documents 'would "discourage candid discussion within the agency."'"
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional

Date Filed	Doc #	Docket Text
2018-04-13	1	COMPLAINT against OFFICE OF MANAGEMENT AND BUDGET ( Filing fee $ 400 receipt number 0090-5422281) filed by ARAB AMERICAN INSTITUTE. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Bailen, Mark) (Entered: 04/13/2018)
2018-04-13		Case Assigned to Judge Amy Berman Jackson. (zsth) (Entered: 04/16/2018)
2018-04-16	2	SUMMONS (3) Issued Electronically as to OFFICE OF MANAGEMENT AND BUDGET, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice and Consent)(zsth) (Entered: 04/16/2018)
2018-04-20	3	NOTICE of Appearance by Scott Leeson Sroka on behalf of All Defendants (Sroka, Scott) (Entered: 04/20/2018)
2018-04-24	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/17/2018. (Bailen, Mark) (Entered: 04/24/2018)
2018-04-24	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/17/2018. Answer due for ALL FEDERAL DEFENDANTS by 5/17/2018. (Bailen, Mark) (Entered: 04/24/2018)
2018-05-11	6	NOTICE of Appearance by Allison Rochford on behalf of ARAB AMERICAN INSTITUTE (Rochford, Allison) (Entered: 05/11/2018)
2018-05-11	7	NOTICE of Appearance by Lindsay Patricia Holmes on behalf of ARAB AMERICAN INSTITUTE (Holmes, Lindsay) (Entered: 05/11/2018)
2018-05-17	8	ANSWER to Complaint by OFFICE OF MANAGEMENT AND BUDGET.(Sroka, Scott) (Entered: 05/17/2018)
2018-05-18	9	ORDER. Before the Court in this FOIA case are a complaint and an answer. The requirements of Local Civil Rule 16.3 and Rule 26(f) of the Federal Rules of Civil Procedure appear to be inapplicable. Defendant shall file a dispositive motion or, in the alternative, a report setting forth the schedule for the completion of its production of documents to plaintiff, on or before June 15, 2018. See Order for details. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/18/2018. (lcabj2) (Entered: 05/18/2018)
2018-06-15	10	STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 06/15/2018)
2018-06-18		MINUTE ORDER. Defendant must make its initial production of documents by July 13, 2018, and the parties must meet and confer and submit a joint status report and schedule for further proceedings by July 13, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/18/2018. (lcabj2) (Entered: 06/18/2018)
2018-07-13	11	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 07/13/2018)
2018-07-16		MINUTE ORDER. The parties must file a joint status report by October 1, 2018 informing the Court of the status of the production of documents. SO ORDERED. Signed by Judge Amy Berman Jackson on 7/16/2018. (lcabj2) (Entered: 07/16/2018)
2018-10-01	12	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 10/01/2018)
2018-10-01		MINUTE ORDER. The parties must file another joint status report by December 3, 2018. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/01/2018. (lcabj2) (Entered: 10/01/2018)
2018-12-03	13	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 12/03/2018)
2018-12-04		MINUTE ORDER. The parties must file another status report by January 22, 2019. Signed by Judge Amy Berman Jackson on 12/4/2018. (lcabj2) (Entered: 12/04/2018)
2019-01-11	14	Unopposed MOTION to Stay , MOTION for Extension of Time to in Light of Lapse of Appropriations by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Hudak, Brian) (Entered: 01/11/2019)
2019-01-14		MINUTE ORDER granting 14 Motion to Stay. Defendant must notify the Court within two business days of the resumption of government operations and propose a revised schedule for the production of documents and filing of a status report, if necessary. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/14/2019. (lcabj2) (Entered: 01/14/2019)
2019-01-29	15	NOTICE of Restored Government Funding by OFFICE OF MANAGEMENT AND BUDGET re Order on Motion to Stay,, Order on Motion for Extension of Time to, (Sroka, Scott) (Entered: 01/29/2019)
2019-01-29		MINUTE ORDER. In light of the defendant's notice 15 , the Court's January 14, 2019 minute order granting a stay in this case is hereby lifted. The parties must file a joint status report proposing a revised schedule for production by February 14, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/29/2019. (lcabj2) (Entered: 01/29/2019)
2019-02-14	16	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 02/14/2019)
2019-02-19		MINUTE ORDER. The parties must file another status report by March 7, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/19/2019. (lcabj2) (Entered: 02/19/2019)
2019-03-07	17	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 03/07/2019)
2019-03-08		MINUTE ORDER. The parties must file another status report by April 8, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/8/2019. (lcabj2) (Entered: 03/08/2019)
2019-04-08	18	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 04/08/2019)
2019-04-09		MINUTE ORDER. The parties must file another status report by May 8, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 4/9/2019. (lcabj2) (Entered: 04/09/2019)
2019-05-08	19	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 05/08/2019)
2019-05-09		MINUTE ORDER. The parties must file another status report by June 10, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 5/9/2019. (lcabj2) (Entered: 05/09/2019)
2019-06-10	20	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 06/10/2019)
2019-06-11		MINUTE ORDER. The parties must file another status report by July 10, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 6/11/2019. (lcabj2) (Entered: 06/11/2019)
2019-07-10	21	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 07/10/2019)
2019-07-11		MINUTE ORDER. The parties must file another status report by August 12, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 7/11/2019. (lcabj2) (Entered: 07/11/2019)
2019-08-12	22	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 08/12/2019)
2019-08-12		MINUTE ORDER. The parties must file another status report by August 20, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/12/2019. (lcabj2) (Entered: 08/12/2019)
2019-08-20	23	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 08/20/2019)
2019-08-22		MINUTE ORDER. The parties must file another status report by September 20, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/22/2019. (lcabj2) (Entered: 08/22/2019)
2019-09-20	24	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 09/20/2019)
2019-10-01		MINUTE ORDER. The parties must file another status report by October 21, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/1/2019. (lcabj2) (Entered: 10/01/2019)
2019-10-21	25	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 10/21/2019)
2019-10-22		MINUTE ORDER. The parties must file another status report by November 4, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 10/22/2019. (lcabj2) (Entered: 10/22/2019)
2019-11-04	26	ENTERED IN ERROR.....Joint STATUS REPORT by ARAB AMERICAN INSTITUTE. (Rochford, Allison) Modified on 11/7/2019 (znmw). (Entered: 11/04/2019)
2019-11-06		NOTICE OF ERROR re 26 Status Report; emailed to arochford@bakerlaw.com, cc'd 6 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. FYI - DO NOT REFILE - Login/Password must match attorney signature on pleading(s) (zjf, ) (Entered: 11/06/2019)
2019-11-06	27	Joint STATUS REPORT by ARAB AMERICAN INSTITUTE. (Rochford, Allison) (Entered: 11/06/2019)
2019-11-07		MINUTE ORDER. The parties must file another status report by November 20, 2019. SO ORDERED. Signed by Judge Amy Berman Jackson on 11/7/2019. (lcabj2) (Entered: 11/07/2019)
2019-11-20	28	Joint STATUS REPORT AND PROPOSED SCHEDULING ORDER by ARAB AMERICAN INSTITUTE. (Rochford, Allison) (Entered: 11/20/2019)
2019-11-25		MINUTE ORDER. In light of the parties joint status report 28 , the Court will enter the following briefing schedule: Defendant's motion for summary judgement will be due on January 21, 2020. Plaintiff's opposition and cross-motion for summary judgment, to be supported by a single memorandum of law, will be due on February 21, 2020. Defendant's reply and cross-opposition, to be supported by a single memorandum of law, will be due on March 20, 2020. Plaintiff's reply will be due on April 3, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 11/25/2019. (lcabj2) (Entered: 11/25/2019)
2020-01-21	29	Consent MOTION for Extension of Time to File Motion for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Sroka, Scott) (Entered: 01/21/2020)
2020-01-21		MINUTE ORDER granting 29 Motion for Extension of Time. Defendant's motion for summary judgement will be due on February 4, 2020. Plaintiff's opposition and cross-motion for summary judgment, to be supported by a single memorandum of law, will be due on March 6, 2020. Defendant's reply and cross-opposition, to be supported by a single memorandum of law, will be due on April 3, 2020. Plaintiff's reply will be due on April 17, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 1/21/2020. (lcabj2) (Entered: 01/21/2020)
2020-01-31	30	MOTION for Summary Judgment and Supporting Memorandum by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Statement of Facts and Proposed Order)(Sroka, Scott) (Entered: 01/31/2020)
2020-02-10	31	ERRATA by OFFICE OF MANAGEMENT AND BUDGET 30 MOTION for Summary Judgment and Supporting Memorandum filed by OFFICE OF MANAGEMENT AND BUDGET. (Sroka, Scott) (Entered: 02/10/2020)
2020-02-10	32	MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Statement of Facts, # 2 Declaration and Exhibits)(Sroka, Scott) (Entered: 02/10/2020)
2020-02-10	33	Joint MOTION to Modify the BRIEFING SCHEDULE by ARAB AMERICAN INSTITUTE (Rochford, Allison) (Entered: 02/10/2020)
2020-02-11		MINUTE ORDER granting 33 joint motion to modify the briefing schedule. Plaintiff's opposition and cross-motion for summary judgment, to be supported by a single memorandum of law, will be due on March 12, 2020. Defendant's reply and cross-opposition, to be supported by a single memorandum of law, will be due on April 9, 2020. Plaintiff's reply will be due on April 23, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 2/11/2020. (lcabj2) (Entered: 02/11/2020)
2020-03-12	34	Cross MOTION for Summary Judgment by ARAB AMERICAN INSTITUTE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts With Exhibit, # 3 Text of Proposed Order)(Rochford, Allison) (Entered: 03/12/2020)
2020-03-12	35	NOTICE OF SUBSTITUTION OF COUNSEL by Robert Aaron Caplen on behalf of OFFICE OF MANAGEMENT AND BUDGET Substituting for attorney Scott Leeson Sroka (Caplen, Robert) (Entered: 03/12/2020)
2020-03-16		NOTICE OF ERROR re 34 Motion for Summary Judgment; emailed to arochford@bakerlaw.com, cc'd 7 associated attorneys -- The PDF file you docketed contained errors: 1. Two-part docket entry, 2. Please refile document, 3. Under the OPPOSITION event (zjf, ) (Entered: 03/16/2020)
2020-03-16	36	Memorandum in opposition to re 30 MOTION for Summary Judgment and Supporting Memorandum , 32 MOTION for Summary Judgment filed by ARAB AMERICAN INSTITUTE. (Attachments: # 1 Statement of Facts and Exhibit, # 2 Text of Proposed Order)(Rochford, Allison) (Entered: 03/16/2020)
2020-03-27	37	Unopposed MOTION for Extension of Time to File Response/Reply as to 34 Cross MOTION for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment , 32 MOTION for Summary Judgment by OFFICE OF MANAGEMENT AND BUDGET (Attachments: # 1 Text of Proposed Order)(Caplen, Robert) (Entered: 03/27/2020)
2020-03-27		MINUTE ORDER granting 37 Motion for Extension of Time. Defendant's reply and cross-opposition, to be supported by a single memorandum of law, will be due on May 13, 2020. Plaintiff's reply will be due on May 28, 2020. SO ORDERED. Signed by Judge Amy Berman Jackson on 3/27/2020. (lcabj2) (Entered: 03/27/2020)
2020-05-13	38	Joint STATUS REPORT by OFFICE OF MANAGEMENT AND BUDGET. (Caplen, Robert) (Entered: 05/13/2020)
2020-05-13	39	Memorandum in opposition to re 34 Cross MOTION for Summary Judgment filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Statement of Facts, # 2 Supplemental Declaration of Heather V. Walsh and Revised Vaughn Index, # 3 Text of Proposed Order)(Caplen, Robert) (Entered: 05/13/2020)
2020-05-13	40	REPLY to opposition to motion re 32 MOTION for Summary Judgment (same as ECF 39) filed by OFFICE OF MANAGEMENT AND BUDGET. (Attachments: # 1 Statement of Facts, # 2 Supplemental Declaration of Heather V. Walsh and Revised Vaughn Index)(Caplen, Robert) (Entered: 05/13/2020)
2020-05-28	41	REPLY to opposition to motion re 34 Cross MOTION for Summary Judgment Plaintiff's Reply in further support of Motion for Summary Judgment (and Opposition to Defendant's Motion for Summary Judgment) filed by ARAB AMERICAN INSTITUTE. (Rochford, Allison) (Entered: 05/28/2020)
2020-05-28	42	Memorandum in opposition to re 32 MOTION for Summary Judgment (re Cross-Motion: same as ECF No. 41) filed by ARAB AMERICAN INSTITUTE. (Rochford, Allison) (Entered: 05/28/2020)
2020-07-24		MINUTE ORDER. In order to assist the Court in making a responsible de novo determination, defendant is directed to deliver to chambers for in camera inspection, by July 31, 2020, the five documents at issue that have been withheld pursuant to FOIA Exemption 5: (1) OMB183FY18176_000000702; (2) OMB183FY18176_000000752; (3) OMB183FY18176_000000321; (4) OMB183FY8176_000000764; and (5) OMB183FY18176_0000003026. See Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). SO ORDERED. Signed by Judge Amy Berman Jackson on 7/24/2020. (lcabj2) (Entered: 07/24/2020)
2020-07-31	43	NOTICE re July 24, 2020, Minute Order by OFFICE OF MANAGEMENT AND BUDGET (Caplen, Robert) (Entered: 07/31/2020)
2020-08-13	44	ORDER. Pursuant to Federal Rules of Civil Procedure 56 and 58, and the accompanying Memorandum Opinion, it is hereby ORDERED that defendant's motion for summary judgment 30 is GRANTED and plaintiff's cross-motion for summary judgment 34 is DENIED. This is a final, appealable order. SO ORDERED. Signed by Judge Amy Berman Jackson on 8/13/2020. (lcabj2) (Entered: 08/13/2020)
2020-08-13	45	MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 8/13/2020. (lcabj2) (Entered: 08/13/2020)
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