Case Detail
| Case Title | AMERICAN CENTER FOR LAW AND JUSTICE v. DEPARTMENT OF JUSTICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2016cv02188 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2016-11-02 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2019-07-01 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Timothy J. Kelly | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | AMERICAN CENTER FOR LAW AND JUSTICE | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | The American Center for Law and Justice submitted a FOIA request to the Department of Justice for records concerning the meeting between former President Bill Clinton and Attorney General Loretta Lynch at the Phoenix Airport. ACLJ sent the same request to the FBI. The agency acknowledged both requests, but after hearing nothing further from the agency, ACLJ filed suit. Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | 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 Complaint attachment 9 Complaint attachment 10 Complaint attachment 11 Complaint attachment 12 Opinion/Order [28] FOIA Project Annotation: Judge Timothy Kelly has ruled that the American Center for Law and Justice waived its ability to challenge the adequacy of the Justice Department's search for records concerning a June 2016 meeting between Bill Clinton and then Attorney General Loretta Lynch at the Phoenix Airport. Kelly has also provided perhaps the most thorough explanation of why talking points created for senior officials in responding to press inquiries qualify for protection under the deliberative process privilege. Kelly's decision also is a rather graphic illustration of how disjointed the government's approach to FOIA litigation can be since Judge Amit Mehta issued a ruling less than two weeks later involving the same parties on a much narrower set of records concerning the privileged status of talking points prepared for Lynch for the same incident. While Mehta was surprised that neither party had mentioned Kelly's on point decision, the fact that he was not informed by the government shows a typical disregard by the government of any attempt to coordinate its litigation efforts. ACLJ requested records concerning the Clinton-Lynch meeting in July 2016 and brought suit in November 2016 after DOJ failed to respond within the statutory time limit. In July and August 2017, the agency disclosed 413 pages to ACLJ with redactions made under Exemption 5 (privileges), Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). The parties met and conferred to discuss the remaining issues. DOJ revised its redactions in two documents. ACLJ informed DOJ that it continued to contest DOJ's redactions under the deliberative process privilege and that it disputed the agency's segregability analysis. The parties signed and filed a September 27, 2017 Status Report. In its summary judgment motion, DOJ only addressed redactions to 11 documents, which it understood were the only documents still in dispute. However, ACLJ in its cross-motion sought to broaden the dispute, indicating that its opposition to the redactions in the 11 documents not only challenged the redactions, but also DOJ's alleged failure to actually segregate factual information from the redacted documents. It also challenged the adequacy of DOJ's search, explaining that since the September 27, 2017 status report ACLJ had received a document from another agency it believed should have been produced by DOJ. In its reply, DOJ provided additional information about its search and withholdings. ACLJ argued that the search was inadequate because the agency had used search terms that were too limited and had improperly narrowed the time frame of certain searches. Kelly found that ACLJ had waived its right to challenge the adequacy of the agency's search by indicating in the September 2017 status report that the only remaining issue was the agency's exemption claims. Kelly explained that "where sophisticated parties to a FOIA case have agreed to narrow the issues in a written status report, they generally may be held to their agreement under traditional waiver principles. . .Just as a party may agree to narrow the case during a pretrial conference, a FOIA plaintiff may agree to do so in a written status report. Having voluntarily narrowed the case to a set of agreed-upon issues, the plaintiff may be said to have waived the others." ACLJ claimed its agreement was void because of the document it had since received from another agency that DOJ had not produced. Kelly dismissed the claim, noting that "adequacy of the government's search is a potential issue in every FOIA case. ACLJ had every opportunity to discuss DOJ's search methodology with DOJ during the meet-and-confer process. And after meeting and conferring, ACLJ represented that it was not challenging DOJ's search." ACLJ's argument that talking points prepared for and used by Lynch to respond to press inquiries constituted the agency's final position was met with a lengthy explanation by Kelly of the role of talking points in agency decision-making. He pointed out that "this argument fails to appreciate the nature of talking points generally and the particular context surrounding the June 28 talking points. Talking points are typically documents 'prepared by [government] employees for the consideration of [government] decision-makers.' There may be some circumstances where 'talking points' are intended by agency decisionmakers to be followed literally such that they, in and of themselves, represent the agency's decision about what to say. But the 'final' version of talking points prepared by more junior staffers for a more senior official is rarely the final decision about what the senior official will say. Rather, a senior official �" especially one as high-ranking as the Attorney General �" may elect to use all, some, or none of the talking points prepared for her. Perhaps to the chagrin of their junior staffers, senior officials have a tendency to improvise. And even when senior officials do follow their talking points, they often do not recite them word-for-word. The particular factual context surrounding the June 28 talking points, which were written for Attorney General Lynch but concerned events she had personally witnessed, strongly suggests that the talking points were no more than advice from subordinates. The final decision was what Attorney General Lynch actually said to the media, which is, of course, already a matter of public record." Kelly further explained that "the talking points remain protected even though Attorney General Lynch followed them and even though they were repurposed for other press inquiries. A government employee drafting talking points to advise a senior official needs to know that her advice will remain privileged regardless of whether the official ultimately sticks to the script or decides to extemporize. It is accordingly of no moment that Attorney General Lynch ultimately 'stuck to the talking points' �" the point is that she might not have. And given that talking points are typically used on the fly, it would rarely be the case that an official formally 'adopts' talking points simply by relying on them. . ." Kelly found that DOJ had not sufficiently explained why the privilege applied to two emails but agreed that factual information contained in the talking points could not be segregated because they were inextricably intertwined with deliberative materials.
Opinion/Order [36]Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Litigation - Jurisdiction - Failure to State a Claim FOIA Project Annotation: Resolving the remaining issues left over from his prior opinion, Judge Timothy Kelly has ruled that a memo prepared for former Attorney General Loretta Lynch containing talking points Lynch could use in responding to press inquiries about her meeting with former President Bill Clinton at the Phoenix airport during the 2016 presidential campaign is protected by Exemption 5 (privileges). The American Center for Law and Justice requested records pertaining to the Clinton-Lynch meeting. The Department of Justice withheld a number of records under the deliberative process privilege, but Kelly found that the agency had not adequately justified its exemption claim for two records and ordered DOJ to provide further explanation. By the time Kelly ruled, DOJ had voluntarily disclosed one of the disputed records, leaving only a memo containing talking points for Lynch to use in responding to press inquiries. Kelly found that the remaining memo was protected by the deliberative process privilege as well. He pointed out that "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." ACLJ argued that there was no evidence that a superior had approved the memo's preparation. Kelly indicated he was puzzled about what superiors ACLJ was referring to. He noted that "to the extent that other intermediaries were involved before the Attorney General â€" and there is no indication from the record, including the results of the Department's search, that was the case â€" the recommended talking points would remain just that: recommendations to the Attorney General." ACLJ also claimed the memo likely mirrored Lynch's public statements as a result of the meeting, constituting official adoption of the memo's contents. Kelly disagreed, pointing out that "the Attorney General's ultimate reliance on the proposals from her subordinates â€" to the extent that occurred here â€" does not amount to such an express and unequivocal choice." ACLJ also challenged the agency's segregability analysis, arguing that "the Department must indicate the precise proportion of non-exempt information." Kelly, however, observed that "ACLJ never explains why that showing is necessary, or, more importantly, how it would help rebut the presumption afforded to the Department that the entire attachment was comprised of proposed talking points" protected by the deliberative process privilege.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Segregability | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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