Case Detail

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Department of Justice has not shown that disclosure of emails from former acting Attorney General Sally Yates would cause foreseeable harm under Exemption 5 (privileges). In response to a request for Yates' emails from Judicial Watch, DOJ disclosed the records in three stages, withholding some records under the deliberative process privilege or the attorney work product privilege. Judicial Watch argued that DOJ had not provided sufficient detail as to why disclosure would cause foreseeable harm. Noting the sparsity of case law interpreting the foreseeable harm standard, Kollar-Kotelly pointed to Rosenberg v. Dept of Justice, 342 F. Supp. 3d 62 (D.D.C. 2018) and Judicial Watch v. Dept of Commerce, 375 F. Supp. 3d 93 (D.D.C. 2019), two D.C. Circuit district court cases, as well as Natural Resources Defense Council v. EPA, (S.D.N.Y., Aug. 30, 2019) 2019 WL 4142725, a case from the Southern District of New York, as the most recent cases to address what was required under the foreseeable harm standard. She pointed out that in Rosenberg, Judge Amit Mehta found that "while the agency could 'take a categorical approach �" that is, group together like records' �" it still had to 'explain the foreseeable harm of disclosure for each category.' The court ultimately found that the agency's statement that disclosure of the information withheld would 'impede open discussion on these issues' was insufficient." She indicated that "the FOIA Improvement Act imposes a meaningful and independent burden on agencies to detail the specific reasonably foreseeable harm that would result from disclosure of certain documents or categories of documents. DOJ has not carried its burden here." She noted that "DOJ provides nearly identical boilerplate statements regarding the harms that will result throughout its first affidavit and Vaughn index." She then explained that "like the generic descriptions of harm provided in Rosenberg and Judicial Watch v. Dept of Commerce, these generic and nebulous articulations of harm are insufficient. The agency has failed to identity specific harms to the relevant protected interests that it can reasonably foresee would actually ensue from disclosure of the withheld materials. Furthermore, it has not connected the harms in any meaningful way to the information withheld, such as by providing context or insight into the specific decision-making processes or deliberations at issue, and how they in particular would be harmed by disclosure. At bottom, the agency has not explained in sufficient detail how 'particular Exemption 5 withholding would harm the agency's deliberative process.'" Having found that DOJ had not articulated the foreseeable harm in disclosing the withheld emails, Kollar-Kotelly agreed with Judicial Watch that a 30-page chart entitled "Sensitive or High-Profile Matters within the Next Two Weeks" was not protected by either the deliberative process privilege or the attorney-work product privilege. Kollar-Kotelly observed that "it has not provided sufficient specific information about the individual entries, their origins, and their connections to ongoing or anticipated litigation for the Court to determine whether the withheld portions are protected by the attorney work product privilege." She found the same problem with the agency's deliberative process privilege claims. She pointed out that "like with its invocation of the attorney work product privilege, DOJ has treated the chart as a whole and failed to treat each entry (or even category of entries) separately. As a result, DOJ has provided too little information to carry its burden here."
Issues: Exemption 5 - Privileges, Exemption 5 - Privileges - Attorney work-product privilege compiled in anticipation of litigation

FOIA Project Annotation: Judge Colleen Kollar-Kotelly has ruled that the Department of Justice properly withheld four drafts attached to emails sent to then Acting Attorney General Sally Yates in January 2017 under Exemption 5 (privileges) in response to a FOIA request from Judicial Watch. Judicial Watch requested Yates' emails but by the time Kollar-Kotelly ruled here, the dispute had narrowed to four remaining drafts that had been attached to emails that had already been disclosed to Judicial Watch. Finding that the four drafts qualified for protection under the deliberative process privilege, Kollar-Kotelly pointed out that "working drafts of a DOJ policy statement to be issued by the Acting Attorney General regarding the legality of an executive order appear manifestly 'deliberative' and 'predecisional.' This is particularly true given that these documents 'reveal the drafters' evolving thought-processes regarding the Executive Order' and were transmitted directly between Ms. Yates and one of her principal aides." Kollare-Kotelly agreed that DOJ had shown that disclosure would cause foreseeable harm. She indicated that the agency's affidavit "explains why disclosure of these particular draft memoranda would implicate the specific harms identified." She noted that "DOJ has sufficiently connected the disclosure of the withheld documents in this case to a foreseeable harm, as is required by the FOIA Improvement Act and has therefore justified its deliberative process withholdings under FOIA Exemption 5." Judicial Watch also argued that the government misconduct exception applied here. Kollar-Kotelly disagreed, noting that "these documents are 'working drafts' of a DOJ policy statement addressing the validity of an executive order, passed between the Acting Attorney General herself and one of her principal aides. Far from an egregious act of government wrongdoing, such internal drafts concerning the legality of government action lie at the very hear of the Attorney General's official role. And the fact that Ms. Yates ultimately disagreed with the President's view on Executive Order 13,769, in and of itself, does not represent foul play, but rather independent judgment. Nor does the President's decision to relieve Ms. Yates of her post after this disagreement suggest malfeasance, as Judicial Watch implies. Instead, it represents the administrative prerogative of a President to remove an executive officer who holds views diverging from his own."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Predecisional, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2017-05-05	1	COMPLAINT against U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 400 receipt number 0090-4941494) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons U.S. Attorney, # 3 Summons U.S. Attorney General, # 4 Summons U.S. Department of Justice)(Orfanedes, Paul) (Entered: 05/05/2017)
2017-05-05	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Orfanedes, Paul) (Entered: 05/05/2017)
2017-05-05		Case Assigned to Judge Colleen Kollar-Kotelly. (sth) (Entered: 05/05/2017)
2017-05-05	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF JUSTICE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(sth) (Entered: 05/05/2017)
2017-05-10	4	ORDER Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly. Signed by Judge Colleen Kollar-Kotelly on May 10, 2017. (NS) (Entered: 05/10/2017)
2017-05-11	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/9/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 6/8/2017.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/9/17., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF JUSTICE served on 5/9/2017 (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 05/11/2017)
2017-06-08	6	NOTICE of Appearance by James O. Bickford on behalf of U.S. DEPARTMENT OF JUSTICE (Bickford, James) (Entered: 06/08/2017)
2017-06-08	7	ANSWER to Complaint by U.S. DEPARTMENT OF JUSTICE.(Bickford, James) (Entered: 06/08/2017)
2017-06-16	8	ORDER. The parties shall file a schedule not later than July 17, 2017. Signed by Judge Colleen Kollar-Kotelly on 6/16/2017. (lcckk1) (Entered: 06/16/2017)
2017-06-16		Set/Reset Deadlines: Joint Status Report due by 7/17/2017. (dot) (Entered: 06/20/2017)
2017-07-17	9	Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Bickford, James) (Entered: 07/17/2017)
2017-07-27		MINUTE ORDER: The Court is in receipt of the parties' 9 Joint Status Report, which indicates that Defendant intends to produce all responsive, non-exempt records by November 24, 2017. Accordingly, the parties shall file a further Joint Status Report by DECEMBER 23, 2017, updating the Court on how the parties intend to proceed, and proposing a briefing schedule if necessary. Signed by Judge Colleen Kollar-Kotelly on 7/27/2017. (lcckk1) (Entered: 07/27/2017)
2017-07-27		Set/Reset Deadlines: Joint Status Report due by 12/23/2017. (dot) (Entered: 07/28/2017)
2017-07-27		Set/Reset Deadlines: Answer to complaint due by 8/25/2017. (dot) (Entered: 07/28/2017)
2017-12-20	10	NOTICE of Appearance by James F. Peterson on behalf of JUDICIAL WATCH, INC. (Peterson, James) (Entered: 12/20/2017)
2017-12-21	11	Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Bickford, James) (Entered: 12/21/2017)
2018-01-03		MINUTE ORDER: The Court is in receipt of the parties' 11 Joint Status Report, which indicates that Defendant "has completed its production and processing of records responsive to Plaintiff's request," has withheld certain documents in full or in part, and disagrees with Plaintiff's proposal that Defendant should be required to provide a draft search declaration and draft Vaughn index at this stage in the litigation. The Court agrees with Defendant that Plaintiff's request for a search declaration and Vaughn index is premature. See, e.g. , Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm'n , 711 F.3d 180, 187 n.5 (D.C. Cir. 2013) (observing that "district courts typically rely on [ Vaughn indices] in adjudicating summary judgment motions in FOIA cases"). The Court adopts the parties' proposal that they submit a further Joint Status Report by FEBRUARY 8, 2018 . This report shall address the status of the parties' efforts to narrow or eliminate the remaining issues in this case and shall propose a briefing schedule if necessary. Signed by Judge Colleen Kollar-Kotelly on January 3, 2018. (lcckk1) (Entered: 01/03/2018)
2018-01-03		Set/Reset Deadlines: Joint Status Report due by 2/8/2018. (dot) (Entered: 01/03/2018)
2018-02-08	12	Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Bickford, James) (Entered: 02/08/2018)
2018-02-09		MINUTE ORDER: The Court is in receipt of the parties' 12 Joint Status Report, which indicates that Defendant has agreed to produce a draft Vaughn index by March 22, 2018, of all documents withheld in full, and all withholdings in part except for those made pursuant to Freedom of Information Act Exemptions 6 or 7(C). The Court adopts the parties' proposal that they submit a further Joint Status Report by APRIL 30, 2018 . This report shall address the status of the parties' efforts to narrow or eliminate the remaining issues in this case and shall propose a briefing schedule if necessary. Signed by Judge Colleen Kollar-Kotelly on February 9, 2018. (lcckk1) (Entered: 02/09/2018)
2018-02-09		Set/Reset Deadlines: Joint Status Report due by 4/30/2018. Defendant's draft Vaughn Index due by 3/22/2018. (dot) (Entered: 02/28/2018)
2018-04-30	13	Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Bickford, James) (Entered: 04/30/2018)
2018-05-10		MINUTE ORDER: The Court is in receipt of the parties' 13 Joint Status Report, which indicates that Defendant has produced a draft Vaughn index, that Defendant has made a supplemental production, and that Plaintiff has reviewed both and indicated to Defendant that it wants to discuss further certain of the withholdings. The Court adopts the parties' proposal that they submit a further Joint Status Report by JUNE 29, 2018 . This report shall address the status of the parties' efforts to narrow or eliminate the remaining issues in this case and shall propose a briefing schedule if necessary. Signed by Judge Colleen Kollar-Kotelly on May 10, 2018. (lcckk1) (Entered: 05/10/2018)
2018-05-10		Set/Reset Deadlines: Joint Status Report due by 6/29/2018 as to the parties' efforts to narrow or eliminate the remaining issues. (dot) (Entered: 05/15/2018)
2018-06-29	14	Joint STATUS REPORT by U.S. DEPARTMENT OF JUSTICE. (Bickford, James) (Entered: 06/29/2018)
2018-07-12		MINUTE ORDER: The Court is in receipt of the parties' 14 Joint Status Report, which indicates that the parties have discussed their remaining issues and continue to "hope to resolve some of them amicably," but that they expect to require the Court's decision as to at least some of these disputes. Accordingly, the Court adopts the parties' proposed schedule for summary judgment briefing in the accompanying Scheduling and Procedures Order. Should the parties ultimately determine that they are able to resolve all of their issues, they shall promptly notify the Court. Signed by Judge Colleen Kollar-Kotelly on July 12, 2018. (lcckk1) (Entered: 07/12/2018)
2018-07-12	15	SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on July 12, 2018. (lcckk1) (Entered: 07/12/2018)
2018-07-12		Set/Reset Deadlines: Plaintiff's Cross Motion due by 9/17/2018. Response to Cross Motion due by 10/9/2018. Reply to Cross Motion due by 10/30/2018. Defendant's Summary Judgment Motion due by 8/17/2018. Response to Motion for Summary Judgment due by 9/17/2018. Reply to Motion for Summary Judgment due by 10/9/2018. (dot) (Entered: 07/13/2018)
2018-08-10	16	Consent MOTION for Extension of Time to File Motion for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bickford, James) (Entered: 08/10/2018)
2018-08-15		MINUTE ORDER: The Court is in receipt of Defendant's 16 Consent Motion for Extension of Time to File Motion for Summary Judgment, which seeks an extension "to allow sufficient time for internal review and preparation of the accompanying Vaughn index." With Plaintiff's consent, the Court GRANTS Defendant's 16 Consent Motion, for good cause shown. The Court adopts Defendant's proposed revised schedule for summary judgment briefing in the accompanying Amended Scheduling and Procedures Order. Signed by Judge Colleen Kollar-Kotelly on August 15, 2018. (lcckk1) (Entered: 08/15/2018)
2018-08-15	17	AMENDED SCHEDULING AND PROCEDURES ORDER. Signed by Judge Colleen Kollar-Kotelly on August 15, 2018. (lcckk1) (Entered: 08/15/2018)
2018-08-15		Set/Reset Deadlines: Defendant's Summary Judgment Motion due by 8/23/2018. Response to Motion for Summary Judgment due by 9/24/2018. Reply to Motion for Summary Judgment due by 10/16/2018. Plaintiff's Cross Motion due by 9/24/2018. Response to Cross Motion due by 10/16/2018. Reply to Cross Motion due by 11/6/2018. (dot) (Entered: 08/15/2018)
2018-08-23	18	MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Bickford, James) (Entered: 08/23/2018)
2018-08-23	19	Vaughn Index from Vanessa Brinkmann. (Attachments: # 1 Exhibits A - F, # 2 Exhibit G: Tabular Vaughn Index)(Bickford, James) (Entered: 08/23/2018)
2018-09-24	20	Memorandum in opposition to re 18 MOTION for Summary Judgment and Response to Defendant's Statement of Facts filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Declaration of Paul J. Orfanedes, # 2 Text of Proposed Order)(Orfanedes, Paul) (Entered: 09/24/2018)
2018-09-24	21	Cross MOTION for Summary Judgment with Plaintiff's Statement of Material Facts by JUDICIAL WATCH, INC. (Attachments: # 1 Declaration of Paul J. Orfanedes, # 2 Text of Proposed Order)(Orfanedes, Paul) (Entered: 09/24/2018)
2018-10-16	22	Memorandum in opposition to re 21 Cross MOTION for Summary Judgment with Plaintiff's Statement of Material Facts filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of Vanessa Brinkmann, # 2 Statement of Facts)(Bickford, James) (Entered: 10/16/2018)
2018-10-16	23	REPLY to opposition to motion re 18 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Declaration of Vanessa Brinkmann, # 2 Statement of Facts)(Bickford, James) (Entered: 10/16/2018)
2018-10-24	24	REPLY to opposition to motion re 21 Cross MOTION for Summary Judgment with Plaintiff's Statement of Material Facts filed by JUDICIAL WATCH, INC.. (Orfanedes, Paul) (Entered: 10/24/2018)
2019-03-26	25	NOTICE OF SUPPLEMENTAL AUTHORITY by JUDICIAL WATCH, INC. (Attachments: # 1 Exhibit)(Orfanedes, Paul) (Entered: 03/26/2019)
2019-09-24	26	ORDER. The Court DENIES WITHOUT PREJUDICE Defendant's 18 Motion for Summary Judgment and HOLDS IN ABEYANCE Plaintiff's 21 Cross-Motion for Summary Judgment. Defendant shall file any new Motion for Summary Judgment no later than OCTOBER 25, 2019. Plaintiff shall file any Opposition on or before NOVEMBER 8, 2019, and Defendant shall any Reply on or before NOVEMBER 15, 2019. See Order for details. Signed by Judge Colleen Kollar-Kotelly on September 24, 2019. (lcckk1) (Entered: 09/24/2019)
2019-09-24	27	MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on September 24, 2019. (lcckk1) (Entered: 09/24/2019)
2019-09-24		Set/Reset Deadlines: Defendant's Summary Judgment Motion due by 10/25/2019. Response to Motion for Summary Judgment due by 11/8/2019. Reply to Motion for Summary Judgment due by 11/15/2019. (dot) (Entered: 09/25/2019)
2019-10-18	28	Consent MOTION for Extension of Time to File Renewed Motion for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Text of Proposed Order)(Bickford, James) (Entered: 10/18/2019)
2019-10-21		MINUTE ORDER: The Court has received Defendant's 28 Consent Motion for Extension of Time to File Renewed Motion for Summary Judgment, in which Defendant seeks an extension in part "to allow sufficient time for internal review and preparation of the revised Vaughn index." With Plaintiff's consent, the Court GRANTS Defendant's 28 Consent Motion for good cause shown. The Court adopts Defendant's proposed revised schedule: Defendant shall file its renewed motion on or before NOVEMBER 5, 2019 ; Plaintiff shall file its opposition on or before NOVEMBER 19, 2019 ; and Defendant shall file its reply on or before NOVEMBER 26, 2019 . Signed by Judge Colleen Kollar-Kotelly on October 21, 2019. (lccck1) (Entered: 10/21/2019)
2019-10-21		Set/Reset Deadlines: Defendant's Renewed Summary Judgment Motion due by 11/5/2019. Response to Motion for Summary Judgment due by 11/19/2019. Reply to Motion for Summary Judgment due by 11/26/2019. (dot) (Entered: 10/22/2019)
2019-11-05	29	Second MOTION for Summary Judgment by U.S. DEPARTMENT OF JUSTICE (Attachments: # 1 Memorandum in Support, # 2 3d Declaration of Vanessa R. Brinkmann, # 3 Statement of Facts, # 4 Text of Proposed Order)(Bickford, James) (Entered: 11/05/2019)
2019-11-19	30	Memorandum in opposition to re 29 Second MOTION for Summary Judgment (With Response to Defendant's Statement of Facts) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Orfanedes, Paul) (Entered: 11/19/2019)
2019-11-26	31	REPLY to opposition to motion re 29 Second MOTION for Summary Judgment filed by U.S. DEPARTMENT OF JUSTICE. (Bickford, James) (Entered: 11/26/2019)
2020-09-18	32	ORDER granting Defendant's 29 Motion for Summary Judgment and denying Plaintiff's 21 Cross-Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on September 18, 2020. (lcckk1) (Entered: 09/18/2020)
2020-09-18	33	MEMORANDUM OPINION regarding 32 Order. Signed by Judge Colleen Kollar-Kotelly on September 18, 2020. (lcckk1) (Entered: 09/18/2020)
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