Case Detail

FOIA Project Annotation: Judge Christopher Cooper has ruled that the Department of State failed to show that Exemption 5 (privileges) justifies its deliberative process privilege claims in response to a FOIA request from CREW for records concerning White House directions in 2020 to several agencies â€" including the State Department â€" to rebuff efforts at oversight from Democratic chairs of various House committees but cooperate in full with requests by the Republican heads of Senate committees. The State Department disclosed 12 records with redactions under Exemption 5. Cooper indicated that CREW's challenges fell into three groups â€" (1) records related to responses to specific congressional inquiries, (2) several emails related to other congressional document requests, and (3) allegedly purely factual material from an internal progress report about responses to congressional document requests. Cooper found State had shown that the records relating to congressional inquiries were predecisional but that the agency had not shown that they were deliberative under the D.C. Circuit's most recent rulings in Reporters Committee v. FBI, 3. 4th 350 (D.C. Cir. 2021) and Judicial Watch v. Dept of Justice, 20 F. 4th 49 (2021). He pointed out that "the State Department's evidentiary submissions, made shortly after or before the D.C. Circuit's most recent pronouncements, do not include the level of detail the Court now needs to evaluate the deliberative nature of the emails and draft letters. In particular, the Department has not told us 'who prepared the' emails or drafts 'or to whom they were addressed,' nor anything about the 'nature of the decisionmaking authority vested' in the various players, including their 'relative positions in the agency's chain of command.'" He indicated that "Courts in this district have long held that agency discussions about 'how to respond to questions from Congress about matters of agency policy qualify as deliberative.' But the Court cannot, on the record here, determine whether the material at issue constitutes the type of back-and-forth exchange of ideas that the deliberative process privilege protects." Because the emails contained in the second category of records were similar to those in the first, Cooper again found that the agency had shown they were predecisional but failed to show they were also deliberative. He noted that "in general, the Department asserts that these documents are deliberative only because they 'reflect the give-and-take of preliminary views' on each subject. Once again, the Department has failed to offer the information the D.C. Circuit has indicated is needed to determine whether the documents are deliberative, including the roles and relative positions of the senders and recipients of the emails; details of the specific decisionmaking process; and the way the redacted material aided in that process." The third category of records consisted of a weekly report summarizing the agency's progress in processing various FOIA requests and congressional document requests. Here, Cooper observed, that "the problem for the State Department is that the redacted information is neither itself deliberative, nor the type of factual material that can be shielded by the deliberative process privilege." He added that "the material withheld from the IPS Weekly Activities Report is not inherently deliberative. The Department contends that the redacted numbers themselves are deliberative because they represent, in effect, a tally of every time the Congressional Document Production branch evaluated a document and deemed it potentially worthy of production." He noted that "rather, each of the CDP's assessments seems to be binary â€" responsive or not. And once those individual determinations are divorced from the specific documents at issue, the Court struggles to see what deliberative judgment can be gleaned from the total." He also rejected the agency's foreseeable harm claim for the third category of records and ordered the agency to disclose them entirely.
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Date Filed	Doc #	Docket Text
2020-07-28	1	COMPLAINT against U.S. DEPARTMENT OF STATE ( Filing fee $ 400 receipt number ADCDC-7392297) filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Civil Cover Sheet, # 2 Summons Attorney General, # 3 Summons U.S. Attorney, # 4 Summons U.S. Dep't of State)(Weismann, Anne) (Entered: 07/28/2020)
2020-07-28	2	LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 07/28/2020)
2020-07-28		Case assigned to Judge Christopher R. Cooper. (zmc) (Entered: 07/28/2020)
2020-07-29	3	SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 07/29/2020)
2020-08-06	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 8/3/2020. ( Answer due for ALL FEDERAL DEFENDANTS by 9/2/2020.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF STATE served on 8/3/2020, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 8/3/20. (Weismann, Anne) (Entered: 08/06/2020)
2020-08-21	5	NOTICE OF SUBSTITUTION OF COUNSEL by Conor M. Shaw on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON Substituting for attorney Anne L. Weismann (Shaw, Conor) (Entered: 08/21/2020)
2020-09-02	6	ANSWER to Complaint by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit 1)(Riess, Daniel) (Entered: 09/02/2020)
2020-09-03		MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure by September 17, 2020. Signed by Judge Christopher R. Cooper on 09/03/2020. (lccrc3) (Entered: 09/03/2020)
2020-09-03		Set/Reset Deadlines: Joint Proposed Briefing Schedule due by 9/17/2020 (lsj) (Entered: 09/03/2020)
2020-09-17	7	Joint STATUS REPORT by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Shaw, Conor) (Entered: 09/17/2020)
2020-09-23	8	NOTICE of Appearance by Laura C. Beckerman on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Beckerman, Laura) (Entered: 09/23/2020)
2020-09-25		MINUTE ORDER: Upon consideration of the 7 Joint Status Report, it is hereby ORDERED that Defendant shall make an initial production of responsive, non-exempt documents on or before October 30, 2020. It is further ORDERED that the parties shall file a Joint Status Report on or before October 30, 2020. In the Joint Status Report due October 30, 2020, Defendant shall indicate the number of pages it has processed and the number of pages it has produced. If possible, Defendant shall also indicate the total number of potentially responsive documents that have been located and an estimated timetable for completing the production as expeditiously as possible. Signed by Judge Christopher R. Cooper on 09/25/2020. (lccrc3) (Entered: 09/25/2020)
2020-09-29		Set/Reset Deadlines: Joint Status Report due by 10/30/2020 (lsj) (Entered: 09/29/2020)
2020-10-30	9	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Riess, Daniel) (Entered: 10/30/2020)
2020-11-10		MINUTE ORDER: The Court has considered the 9 Joint Status Report. It is hereby ORDERED that, if they have not done so already, the parties shall promptly meet and confer regarding the scope and methodology of Defendant's search. It is further ORDERED that the parties shall file a further Joint Status Report on or before November 30, 2020. The Joint Status Report due November 30, 2020 shall include a joint proposed timetable for completion of production or, if the parties cannot agree, a separate proposed timetable from each party. The Joint Status Report shall also indicate the number of pages Defendant has processed and the number of pages it has produced. Signed by Judge Christopher R. Cooper on 11/10/2020. (lccrc3) (Entered: 11/10/2020)
2020-11-30	10	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Riess, Daniel) (Entered: 11/30/2020)
2020-12-01		MINUTE ORDER: In light of the 10 Joint Status Report, the parties are hereby ordered to file a further Joint Status Report on or before February 1, 2021. Signed by Judge Christopher R. Cooper on 12/01/2020. (lccrc3) (Entered: 12/01/2020)
2021-02-01	11	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Riess, Daniel) (Entered: 02/01/2021)
2021-02-02		MINUTE ORDER: In light of the 11 Joint Status Report, the parties are hereby ordered to file a further Joint Status Report on or before March 18, 2021. Signed by Judge Christopher R. Cooper on 02/02/2021. (lccrc3) (Entered: 02/02/2021)
2021-03-17	12	Joint STATUS REPORT by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Beckerman, Laura) (Entered: 03/17/2021)
2021-03-17		MINUTE ORDER: In light of the 12 Joint Status Report, the parties are directed to file their next Joint Status Report on or before April 20, 2021. If any disputes remain, the next Joint Status Report should include a jointly proposed briefing schedule. Signed by Judge Christopher R. Cooper on 03/17/2021. (lccrc3) (Entered: 03/17/2021)
2021-04-13	13	NOTICE OF SUBSTITUTION OF COUNSEL by Anne L. Weismann on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON Substituting for attorney Laura C. Beckerman (Weismann, Anne) (Entered: 04/13/2021)
2021-04-19	14	NOTICE of Appearance by Anne L. Weismann on behalf of CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON (Weismann, Anne) (Entered: 04/19/2021)
2021-04-19	15	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Riess, Daniel) (Entered: 04/19/2021)
2021-04-20		MINUTE ORDER: In light of the 15 Joint Status Report, the Court adopts the following briefing schedule. Defendant shall file its Motion for Summary Judgment on or before May 18, 2021. Plaintiff shall file its response to Defendant's motion for summary judgment, together with its cross-motion for summary judgment, on or before June 18, 2021. Defendant shall file its reply in support of its motion, together with its response to Plaintiff's cross-motion, on or before July 9, 2021. Plaintiff shall file its reply in support of its cross-motion on or before July 26, 2021. So Ordered. Signed by Judge Christopher R. Cooper on 04/20/2021. (lccrc3) (Entered: 04/20/2021)
2021-05-18	16	MOTION for Summary Judgment by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Statement of Facts, # 5 Text of Proposed Order)(Riess, Daniel) (Entered: 05/18/2021)
2021-06-18	17	Memorandum in opposition to re 16 MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Statement of Facts Response, # 4 Text of Proposed Order)(Weismann, Anne) (Entered: 06/18/2021)
2021-06-18	18	Cross MOTION for Summary Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Statement of Facts, # 5 Text of Proposed Order)(Weismann, Anne) (Entered: 06/18/2021)
2021-07-09	19	Memorandum in opposition to re 18 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Second Declaration of Eric F Stein, # 2 Response to Statement of Facts)(Riess, Daniel) (Entered: 07/09/2021)
2021-07-09	20	REPLY to opposition to motion re 16 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Second Declaration of Eric F Stein)(Riess, Daniel) (Entered: 07/09/2021)
2021-07-19	21	Unopposed MOTION for Extension of Time to File Response/Reply as to 18 Cross MOTION for Summary Judgment by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Attachments: # 1 Text of Proposed Order)(Weismann, Anne) (Entered: 07/19/2021)
2021-07-19		MINUTE ORDER granting 21 Motion for Extension of Time to File Reply. Plaintiff's reply in support of its cross-motion for summary judgment shall be due August 2, 2021. Signed by Judge Christopher R. Cooper on 07/19/2021. (lccrc3) (Entered: 07/19/2021)
2021-07-29	22	REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON. (Weismann, Anne) (Entered: 07/29/2021)
2022-02-11	23	ORDER denying Defendant's 16 Motion for Summary Judgment; granting in part and denying in part Plaintiff's 18 Motion for Summary Judgment. See full Order and accompanying Memorandum Opinion for details. Signed by Judge Christopher R. Cooper on 2/11/2022. (lccrc2) (Entered: 02/11/2022)
2022-02-11	24	MEMORANDUM OPINION re 23 ORDER denying Defendant's 16 Motion for Summary Judgment and granting in part and denying in part Plaintiff's 18 Motion for Summary Judgment. Signed by Judge Christopher R. Cooper on 2/11/2022. (lccrc2) (Entered: 02/11/2022)
2022-02-24	25	Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Riess, Daniel) (Entered: 02/24/2022)
2022-03-01		MINUTE ORDER: In light of the 25 Joint Status Report, the Court adopts the following briefing schedule. Defendant shall file its renewed motion for summary judgment on or before April 8, 2022. Plaintiff shall file its response to Defendant's renewed motion for summary judgment, together with any renewed cross-motion for summary judgment, on or before April 29, 2022. Defendant shall file its reply in support of its motion, together with its response to Plaintiff's cross-motion, on or before May 20, 2022. Plaintiff shall file its reply in support of any cross-motion on or before June 3, 2022. So ordered by Judge Christopher R. Cooper on 3/1/2022. (lccrc2) (Entered: 03/01/2022)
2022-04-05	26	Joint MOTION for Extension of Time to File Renewed Summary Judgment Briefing by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Riess, Daniel) (Entered: 04/05/2022)
2022-04-07		MINUTE ORDER granting 26 Joint Motion for Extension of Time. The following deadlines shall apply: Defendant shall file its renewed motion for summary judgment or a notice of dismissal on or before May 13, 2022. If necessary, Plaintiff shall file its response to Defendant's renewed motion for summary judgment, together with any renewed cross-motion for summary judgment, on or before June 3, 2022. Defendant shall file its reply in support of its motion, together with its response to Plaintiff's cross-motion, on or before June 24, 2022. Plaintiff shall file its reply in support of any cross-motion on or before July 8, 2022. Signed by Judge Christopher R. Cooper on 4/7/2022. (lccrc2) (Entered: 04/07/2022)
2022-05-12	27	Joint MOTION for Extension of Time to File Renewed Summary Judgment Briefing by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Riess, Daniel) (Entered: 05/12/2022)
2022-05-16		MINUTE ORDER granting 27 Motion for Extension of Time to File Summary Judgment Briefing. The following deadlines shall apply: Defendant shall file its renewed motion for summary judgment or a notice of dismissal on or before May 20, 2022. If necessary, Plaintiff shall file its response to Defendant's renewed motion for summary judgment, together with any renewed cross-motion for summary judgment, on or before June 10, 2022. Defendant shall file its reply in support of its motion, together with its response to Plaintiff's cross-motion, on or before July 1, 2022. Plaintiff shall file its reply in support of any cross-motion on or before July 15, 2022. Signed by Judge Christopher R. Cooper on 5/16/2022. (lccrc2) (Entered: 05/16/2022)
2022-05-17	28	STIPULATION of Dismissal (Jointly Filed) by U.S. DEPARTMENT OF STATE. (Riess, Daniel) (Entered: 05/17/2022)
2022-05-17		MINUTE ORDER: In light of the 28 Stipulation of Dismissal, this case is hereby dismissed with prejudice. Signed by Judge Christopher R. Cooper on 5/17/2022. (lccrc2) (Entered: 05/17/2022)
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