Case Detail

FOIA Project Annotation: Judge Trevor McFadden has ruled that the Department of Justice properly withheld records concerning risk assessment tools under Exemption 5 (privileges). EPIC made a request for five categories of records pertaining to risk assessment tools. DOJ disclosed 231 pages entirely and 128 pages with redactions. It withheld an additional 2, 363 pages, characterized as a Predictive Analytics Report prepared for the White House, under the presidential communications privilege and the deliberative process privilege. EPIC challenged the invocation of the presidential communications privilege, arguing that the agency could not invoke the claim unilaterally. McFadden rejected this claim, noting that "a categorical approach to the presidential communications privilege depends on the nature of the document and not on how the privilege is invoked. Thus, the Court concludes that the Department has adequately invoked the privilege without any action by the President or his staff." McFadden also rejected EPIC's claim that the presidential communications privilege only applied to documents sent to the President or his immediate advisors and that sending the predictive analytics report to an associate White House Counsel was insufficient. Instead, McFadden observed that "whether or not an Associate White House Counsel is 'an immediate White House adviser,' she is a member of the staff of the White House Counsel, who is certainly himself an immediate White House adviser." EPIC argued that the deliberative process privilege did not apply to factual materials. Noting that Mapother v. Dept of Justice, 3 F.3d 1533 (D.C. Cir. 1993) and Ancient Coin Collectors Guild v. Dept of State, 641 F.3d 504 (D.C. Cir. 2011), recognized that disclosure of factual material could sometimes reveal deliberations, McFadden pointed out that DOJ's affidavit explained that "research and briefing materials it seeks to withhold assemble relevant facts and disregard irrelevant facts, reflecting the judgment of the Department employees and consultants who prepared the materials to help the Department decide what to report to the White House about evidence-based assessment tools. This places the research and briefing materials within the scope of the deliberative process privilege. . ." EPIC also challenged the agency's use of the consultant's corollary, citing Competitive Enterprise Institute v. Office of Science & Technology Policy (CEI), 827 F.3d 145 (D.C. Cir. 2016) to argue that the agency had not shown that the consultants were not advocating their own point of view. Finding CEI was not on point, McFadden indicated that "in CEI there was affirmative evidence suggesting that the consultant had a professional, reputational, and financial interest in promoting her theory. . .to the agency that consulted her, while here there is nothing to overcome the presumption of good faith that the agency's declaration enjoys."
Issues: Exemption 5 - Privileges

Date Filed	Doc #	Docket Text
2017-03-07	1	COMPLAINT against UNITED STATES DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4868185) filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Attorney General of the United States, # 3 Summons United States Department of Justice, # 4 Summons U.S. Attorney for the District of Columbia)(Butler, Alan) (Entered: 03/07/2017)
2017-03-07	2	Corporate Disclosure Statement by ELECTRONIC PRIVACY INFORMATION CENTER. (Butler, Alan) (Entered: 03/07/2017)
2017-03-07	3	NOTICE of Appearance by Marc Rotenberg on behalf of ELECTRONIC PRIVACY INFORMATION CENTER (Rotenberg, Marc) (Entered: 03/07/2017)
2017-03-09		Case Assigned to Judge Ketanji Brown Jackson. (zsb) (Entered: 03/09/2017)
2017-03-09	4	SUMMONS (3) Issued Electronically as to UNITED STATES DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(zsb) (Entered: 03/09/2017)
2017-03-14	5	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions and filing exhibits. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 3/14/2017. (lckbj1) (Entered: 03/14/2017)
2017-03-30	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/28/2017. Answer due for ALL FEDERAL DEFENDANTS by 4/27/2017. (Butler, Alan) (Entered: 03/30/2017)
2017-03-30	7	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 03/28/2017. (Butler, Alan) Modified date served on 3/31/2017 (td). (Entered: 03/30/2017)
2017-03-30	8	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DEPARTMENT OF JUSTICE served on 3/28/2017 (Butler, Alan) (Entered: 03/30/2017)
2017-04-18	9	NOTICE of Appearance by Alexander Daniel Shoaibi on behalf of UNITED STATES DEPARTMENT OF JUSTICE (Shoaibi, Alexander) (Entered: 04/18/2017)
2017-04-18	10	First MOTION for Extension of Time to Respond to Complaint by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 04/18/2017)
2017-04-24		MINUTE ORDER granting, for good cause shown, 10 Motion for Extension of Time to Answer, nunc pro tunc. It is hereby ORDERED that Defendant shall answer or otherwise respond to the complaint on or before 5/22/2017. Signed by Judge Ketanji Brown Jackson on 04/24/2017. (lckbj1) (Entered: 04/24/2017)
2017-05-19	11	ANSWER to Complaint by UNITED STATES DEPARTMENT OF JUSTICE.(Shoaibi, Alexander) (Entered: 05/19/2017)
2017-07-07	12	Joint STATUS REPORT and Motion to Adopt a Schedule for Further Proceedings by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 07/07/2017)
2017-07-07	13	MOTION for Scheduling Order by ELECTRONIC PRIVACY INFORMATION CENTER. (See Docket Entry 12 to view document). (znmw) (Entered: 07/10/2017)
2017-07-11		MINUTE ORDER. Upon consideration of the parties' 12 Joint Status Report and Motion to Adopt a Schedule for Further Proceedings, it is hereby ORDERED that the motion is GRANTED and the parties' proposed schedule is ADOPTED. Accordingly, this case will proceed according to the following schedule: (1) The DOJ shall produce all non-exempt records responsive to categories 4 and 5 of Plaintiff's FOIA request, or otherwise respond to that portion of Plaintiff's request, on or before August 16, 2017; (2) the DOJ shall produce all remaining non-exempt records responsive Plaintiff's FOIA request, or otherwise respond to that portion of Plaintiff's request, on or before September 15, 2017; and (3) the parties shall file a joint status report on or before September 29, 2017, which shall contain a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 07/11/2017. (lckbj1) (Entered: 07/11/2017)
2017-09-01	14	Consent MOTION for Extension of Time to Produce Documents by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 09/01/2017)
2017-09-01		MINUTE ORDER granting, for good cause shown, 14 Consent Motion for Extension of Time to Produce Documents. IT is hereby ORDERED that DOJ shall produce all remaining non-exempt records responsive Plaintiff's FOIA request, or otherwise respond to that portion of Plaintiff's request, on or before 10/15/2017; and that the parties shall file a joint status report on or before 10/27/2017, which shall contain a proposed schedule for further proceedings if litigation is going to be necessary. Signed by Judge Ketanji Brown Jackson on 09/01/2017. (lckbj1) (Entered: 09/01/2017)
2017-10-12	15	Consent MOTION for Extension of Time to Produce Documents by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 10/12/2017)
2017-10-25		MINUTE ORDER granting, for good cause shown, 15 Consent Motion for Extension of Time to Produce Remaining Responsive Records, nunc pro tunc. It is hereby ORDERED that Defendant shall produce all remaining non-exempt records that are responsive to Plaintiff's FOIA request on or before 10/31/2017. Signed by Judge Ketanji Brown Jackson on 10/25/2017. (lckbj1) (Entered: 10/25/2017)
2017-11-02		Case directly reassigned to Judge Trevor N. McFadden. Judge Ketanji Brown Jackson is no longer assigned to the case. (ztnr) (Entered: 11/02/2017)
2017-11-15		NOTICE OF HEARING:The parties shall take notice that a Status Conference is scheduled for December 5, 2017, at 10:00 AM, in Courtroom 2 before Judge Trevor N. McFadden. (hmc) (Entered: 11/15/2017)
2017-11-15	16	Joint STATUS REPORT and Motion to Adopt a Schedule for Further Proceedings by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 11/15/2017)
2017-11-15		MINUTE ORDER: The parties shall file a Joint Status Report on or before December 1, 2017, advising the Court of a proposed schedule for further proceedings in this matter and advising whether the currently scheduled status conference will be useful. SO ORDERED. Signed by Judge Trevor N. McFadden on 11/15/2017. (lctnm1) (Entered: 11/15/2017)
2017-11-15	17	Joint MOTION for Scheduling Order by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES DEPARTMENT OF JUSTICE (See Docket Entry 16 to view document). (znmw) (Entered: 11/16/2017)
2017-11-16		Set/Reset Deadlines: Joint Status Report due on or before 12/1/2017. (hmc) (Entered: 11/16/2017)
2017-12-01	18	Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 12/01/2017)
2017-12-01		MINUTE ORDER: In light of the parties' 18 Joint Status Report, the Status Conference scheduled for December 5, 2017, is hereby VACATED. The parties are ORDERED to file a Joint Status Report on or before December 14, 2017, advising the Court of a proposed schedule for further proceedings in this matter. Signed by Judge Trevor N. McFadden on 12/1/17. (lctnm1) (Entered: 12/01/2017)
2017-12-01		Set/Reset Deadlines: Joint Status Report due by 12/14/2017. (hmc) (Entered: 12/01/2017)
2017-12-01	19	Joint MOTION for Scheduling Order by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES DEPARTMENT OF JUSTICE(See Docket Entry 18 to view document). (znmw) (Entered: 12/04/2017)
2017-12-14	20	Joint STATUS REPORT by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Text of Proposed Order)(Butler, Alan) (Entered: 12/14/2017)
2017-12-14	21	Joint MOTION for Scheduling Order by ELECTRONIC PRIVACY INFORMATION CENTER, UNITED STATES DEPARTMENT OF JUSTICE(See Docket Entry 20 to view document). (znmw) (Entered: 12/15/2017)
2017-12-15		MINUTE ORDER: Upon consideration of the parties' 20 Joint Status Report and 21 Joint Motion for Scheduling Order, the parties' Joint Motion for Scheduling Order is GRANTED. The Defendant's Motion for Summary Judgment shall be filed by February 14, 2018; the Plaintiff's Opposition and Cross-Motion for Summary Judgment shall be filed by March 16, 2018; the Defendant's Reply in support of its own Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment shall be filed by April 5, 2018; and Plaintiff's Reply in Support of its Cross Motion for Summary Judgment shall be filed by April 16, 2018. Signed by Judge Trevor N. McFadden on 12/15/2017. (lctnm1) (Entered: 12/15/2017)
2017-12-15		Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 2/14/2018. Plaintiff's opposition to Defendant's Motion for Summary Judgment and Cross-Motion due by 3/16/2018. Defendant's reply in support of its Motion for Summary Judgment and opposition to Plaintiff's Cross-Motion due by 4/5/2018. Plaintiff's reply in support of its Cross-Motion due by 4/16/2018. (hmc) (Entered: 12/15/2017)
2018-02-14	22	Unopposed MOTION for Extension of Time to File Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 02/14/2018)
2018-02-14		MINUTE ORDER granting the Department of Justice's 22 Unopposed Motion for Extension of Time. The Department of Justice's Motion for Summary Judgment shall now be filed by February 15, 2018. SO ORDERED. Signed by Judge Trevor N. McFadden on 2/14/18. (lctnm1) (Entered: 02/14/2018)
2018-02-15		Set/Reset Deadlines: Defendant's Motion for Summary Judgment due by 2/15/2018. (hmc) (Entered: 02/15/2018)
2018-02-15	23	MOTION for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Declaration (Declaration of Vanessa R. Brinkman), # 2 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 02/15/2018)
2018-03-16	24	Memorandum in opposition to re 23 MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit Exhibits A-H, # 4 Text of Proposed Order)(Butler, Alan) (Entered: 03/16/2018)
2018-03-16	25	Cross MOTION for Summary Judgment by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Exhibit Exhibits A-H, # 4 Text of Proposed Order)(Butler, Alan) (Entered: 03/16/2018)
2018-04-03	26	Consent MOTION for Extension of Time to File Reply in Support of Motion for Summary Judgment and Opposition to Cross-Motion for Summary Judgment by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 04/03/2018)
2018-04-03		MINUTE ORDER granting Defendant's 26 Consent Motion for Extension of Time. Defendant shall now file its reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion for summary judgment by April 12, 2018. Plaintiff shall file its reply in supports of its cross-motion for summary judgment by April 23, 2018. SO ORDERED. Signed by Judge Trevor N. McFadden on 4/3/18. (lctnm1) (Entered: 04/03/2018)
2018-04-04		Set/Reset Deadlines: Defendant's reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion due by 4/12/2018. Plaintiff's reply in support of its cross-motion due by 4/23/2018. (hmc) (Entered: 04/04/2018)
2018-04-12	27	Second MOTION for Extension of Time to File Reply and Opposition by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 04/12/2018)
2018-04-13		MINUTE ORDER: Upon consideration of Defendant's 27 Motion for Extension of Time to File, Defendant's reply in support of its motion for summary judgments and its opposition to the Plaintiff's cross-motion for summary judgment shall be filed on or before April 19, 2018, and Plaintiff's reply in support of its cross-motion for summary judgment shall be filed on or before April 30, 2018. The Court advises Defendant that further requests for an extension of time for this filing will be disfavored. SO ORDERED. Signed by Judge Trevor N. McFadden on 4/13/18. (lctnm1) (Entered: 04/13/2018)
2018-04-13		Set/Reset Deadlines: Defendant's reply in support of its motion for summary judgment and opposition to Plaintiff's cross-motion due by 4/19/2018. Plaintiff's reply in support of its cross-motion due by 4/30/2018. (hmc) (Entered: 04/13/2018)
2018-04-19	28	Third MOTION for Extension of Time to File Reply and Opposition by UNITED STATES DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 04/19/2018)
2018-04-19	29	Memorandum in opposition to re 28 Third MOTION for Extension of Time to File Reply and Opposition filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 04/19/2018)
2018-04-19		MINUTE ORDER denying Defendant's 28 Motion for Third Extension of Time as the motion is in violation of the 5 General Order's requirement that "counsel seeking an extension of a deadline shall file a written motion at least two (2) business days prior to expiration of the deadline," the current deadline is of the Defendant's own choosing, two extensions of time for this filing have already been granted, and Defendant was warned that further extensions of this deadline would be disfavored. Signed by Judge Trevor N. McFadden on 4/19/18. (lctnm1) (Entered: 04/19/2018)
2018-04-19	30	REPLY to opposition to motion re 23 MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Shoaibi, Alexander) (Entered: 04/19/2018)
2018-04-19	31	Memorandum in opposition to re 25 Cross MOTION for Summary Judgment filed by UNITED STATES DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Shoaibi, Alexander) (Entered: 04/19/2018)
2018-04-20	32	STANDING ORDER Establishing Procedures for Cases Before Judge Trevor N. McFadden. The parties are hereby ORDERED to read and comply with the directives in the attached standing order. Signed by Judge Trevor N. McFadden on 4/20/18. (lctnm1) (Entered: 04/20/2018)
2018-04-30	33	REPLY to opposition to motion re 25 Cross MOTION for Summary Judgment filed by ELECTRONIC PRIVACY INFORMATION CENTER. (Rotenberg, Marc) (Entered: 04/30/2018)
2018-07-23	34	NOTICE OF SUBSTITUTION OF COUNSEL by Jeremy S. Simon on behalf of UNITED STATES DEPARTMENT OF JUSTICE Substituting for attorney Alexander Shoaibi (Simon, Jeremy) (Entered: 07/23/2018)
2018-08-15	35	MEMORANDUM AND OPINION re Defendant's 23 Motion for Summary Judgment and Plaintiff's 25 Cross-Motion for Summary Judgment. Signed by Judge Trevor N. McFadden on 8/15/18. (lctnm1) (Entered: 08/15/2018)
2018-08-15	36	ORDER granting Defendant's 23 Motion for Summary Judgment and denying Plaintiff's 25 Cross-Motion for Summary Judgment. See attached Order for details. Signed by Judge Trevor N. McFadden on 8/15/18. (lctnm1) (Entered: 08/15/2018)
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