Case Detail
| Case Title | ELECTRONIC FRONTIER FOUNDATION v. DEPARTMENT OF JUSTICE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2010cv00641 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2010-04-26 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2010-07-30 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Reggie B. Walton | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | ELECTRONIC FRONTIER FOUNDATION | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | DEPARTMENT OF JUSTICE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Opinion/Order [34] FOIA Project Annotation: Judge Reggie Walton has found that the Justice Department failed to show that records concerning discussions and negotiations between the United States and the European Union on the international exchange of personal information for use by law enforcement authorities were protected under Exemption 5 (deliberative process privilege). But, while Walton concluded the agency had failed to meet its burden, he indicated that it was likely that some of the information was privileged and should be protected once the agency provided a more detailed explanation for its withholding claims. He pointed out that "because the Court ultimately agrees with the plaintiff that the agency's Vaughn submissions are deficient in several respects, it does not (and indeed cannot) reach the question of whether the DOJ has properly invoked the deliberative process privilege of FOIA Exemption 5." DOJ argued that the plaintiff, the Electronic Frontier Foundation, "appears to have reviewed each component's declaration and Vaughn index separately, when it should have reviewed them in pari materia. Had [the plaintiff] viewed each component's documents as a package, it would have noted the sufficient level of specificity and context." The agency noted that its declarations described "each of the groups of records in question, how the documents were similar in nature, and the nature of the withholdings." Because "many of the documents in question consist of email traffic within and among the DOJ components and other federal agencies," it would have been "unnecessary and unduly burdensome to separate each of the documents in the [eleven] groups in [the case of the Office of Information Policy], and the ten categories in the case [of the Criminal Division]." Walton then noted that "the fact that each component has organized their withheld documents into categories does not render their Vaughn submission per se inadequate. Still, the categories employed by the agency must be 'sufficiently particularized' to discharge the agency's Vaughn obligations." Walton pointed out that OIP's index "provides a broad description for each category, as well as a range of documents included within each category," and that the Criminal Division's index "provides some additional details as to each category of withheld documents, and describes the reasoning behind the component's invocation of the deliberative process privilege." But Walton concluded that "upon close inspection, the Court finds that many of the descriptions provided in the DOJ components' Vaughn submissions are too vague for the Court to determine whether the components' properly applied the deliberative process privilege to the withheld documents." He identified four ways in which they were insufficient. "First, in many instances, the DOJ components' Vaughn submissions fail to provide necessary contextual information about the particular decisionmaking processes to which the withheld documents contributed, and the role the withheld documents played in those processes." Pointing to an entry in OIP's submissions that described emails as consisting of "back and forth discussions, forwards, and spinoff discussions in which [DOJ officials] exchange any thoughts, ideas, or guidance that they deem appropriate regarding the U.S.[']s. . .negotiation position on [United States-European Union High Level Contact Group] matters. These officials analyze and prepare for EU negotiating positions and work amongst themselves to promote [DOJ] and U.S. foreign interests in these foreign negotiations." Walton observed that "the Court finds this description inadequate because it fails to identify a specific deliberative process to which the withheld email messages contributed. Indeed, the OIP's vague references to 'HLCG matters' and 'deliberations' provides little context to the Court and the plaintiff, given that the HLCG negotiations occurred on various instances throughout 2008 and 2009." For another OIP entry described as messages between two individuals "discussing issues raised by a meeting between U.S. and EU representatives on HLCG information sharing principles," Walton indicated that "the problem with the adequacy of this description is that it fails to describe what role, if any, these particular e-mail messages played in the agency's deliberative processes. In fact, based on the description provided by the OIP, it is possible that the e-mail messages simply summarize factual matters discussed during a prior meeting and thus do not constitute the type of 'deliberative' communications relating to the 'formulation or exercise of agency policy-oriented judgment' that the privilege is designed to protect. Without a more detailed Vaughn Index and supporting declaration, the Court is unable to assess, one way or the other, the OIP's deliberative process privilege claim." As to the Criminal Division, Walton noted that "as with many of the OIP's categories of withholdings, the Criminal Division's Category B fails to illuminate the deliberative process to which the withheld documents contributed. Rather, it merely states that the withheld documents relate to 'various meetings,' without correlating each document to a particular meeting, or describing, even in vague terms, the subject matter of the meetings." The Vaughn Indexes were also deficient because they failed to "provide sufficient detail as to the identities, positions, and job duties of the authors and recipients of the withheld documents. . .Such contextual information is critical in assessing a deliberative process claim." The Criminal Division explained that there had been no "chain-of command" in the discussions and that the participants had acted collaboratively. But Walton pointed out that "nevertheless, even if the document participants worked as peers on the issues discussed in the withheld documents, their positions and the scope of their decisionmaking authority within the DOJ are factors relevant to the agency's deliberative process privilege claim." A third deficiency was the identification of many documents as "drafts." Walton pointed out that "these document designations are significant because the 'likelihood' that 'briefing materials and talkings points. . . have been relied upon or adopted as official positions after their preparation. . .is particularly high.' Indeed, one need only look to the OIP's supporting declaration to see that the DOJ's 'most senior officials rely heavily on the creation of such briefing materials so that they can be fully informed. . .[and] prepared to decide how best to present [the agency's] views to the [DOJ's] counterparts, to respond to inquiries and concerns, and to represent the U.S. government's interests in negotiations.' In short, the DOJ's Vaughn submissions fail to provide sufficient detail concerning the withheld 'drafts' to facilitate the Court's evaluation of the agency's deliberative process privilege claim as to these documents." Walton also noted that the agency had failed to respond to EFF's allegation that the privilege had been waived by sharing records with non-privileged parties. Walton observed that "the plaintiff's contention concerning the DOJ's disclosure of withheld documents to non-Executive Branch parties is based not on mere speculation, but on the DOJ's own released e-mails. The Court finds that these e-mails cast doubt on the validity of the DOJ's declarations, and the agency thus should provide further explanation regarding whether it shared with non-Executive Branch entities the responsive documents that it withheld from the plaintiff." EFF also contended that DOJ had waived the privilege as to information shared with EU counterparts. Walton indicated that "here again, the Court is unable to address the merits of the plaintiff's waiver challenge because the DOJ components' Vaughn submissions, as presently configured, fail to describe what documents contain information that was shared with entities outside the Executive Branch." EFF also challenged the agency's segregability claims. But Walton pointed out that "upon consideration of the DOJ's justifications, and given the number of redacted documents that it has produced to the plaintiff, the Court does not doubt that the DOJ has conducted a segregability analysis of responsive documents. Nevertheless, the Court believes that the DOJ can provide a more comprehensive description as to the various documents withheld in full." Walton decided to allow DOJ to supplement its existing affidavits. He noted that "because 'a district court should not undertake in camera review of withheld documents as a substitute for requiring an agency's explanation of its claimed exemptions in accordance with Vaughn,' the Court finds that the best approach is to direct the agency to revise their Vaughn submissions, taking into account the deficiencies identified by the Court."
Opinion/Order [46]Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative FOIA Project Annotation: Judge Reggie Walton has ruled that the Justice Department properly invoked Exemption 5 (deliberative process privilege) to withhold records concerning the United States-European Union High Level Contact Group created to develop U.S. positions for negotiations with the European Union on a set of common principles for protection of personal information in the trans-national law enforcement context. The HLCG negotiations consisted of internal agency deliberations to develop U.S. negotiating positions and external deliberations with EU officials concerning the common data protection principles. The HLCG positions were developed by consensus between DOJ, Homeland Security, and State. When the HLCG principles were completed, they were presented and accepted by the ministers, whose work on a binding international agreement is still ongoing. EFF requested records on the work and deliberations of the HLCG. Many of the records were withheld under Exemption 5, but Walton's first ruling in the case found DOJ had failed to justify its exemption and segregability claims. He ordered the agency to supplement its affidavits and this time around ruled they were adequate. Although DOJ found some records that might not be covered by the privilege because they had been shared with the EU, the agency told Walton those records had been referred to State and Homeland Security for a direct response to EFF. EFF argued some records reflected the government's final negotiating positions and were not predecisional. But Walton noted that "there is no indication that the agencies that participated in the HLCG negotiations formally or expressly adopted the United States HLCG experts' negotiating positions in any publicly-available document or publication, nor does the plaintiff contend that is the case. And regarding informal adoption, this is not a case where the withheld information sought by plaintiff was used as the agencies' 'working law' or 'secret law.'" EFF also argued that significant amounts of information were likely disclosed to EU officials and contended the agency had the burden of showing the information had not been disclosed. Walton disagreed, pointing out that "it is the plaintiff, not the agency, who carries the burden of producing at least some evidence that the deliberative process privilege has been waived. The plaintiff has not carried that burden here. It instead offers only speculation. . .Because there is no proof that specific 'documents or information' withheld as privileged by the DOJ were voluntarily disclosed to 'unnecessary third parties,' and because waivers of the deliberative process privilege 'should not be lightly inferred,' the plaintiff's contention must be rejected." While EFF argued that factual material in the records was required to be released, Walton found that much of what EFF considered factual revealed the impressions of agency officials. Referring to one document concerning a draft proposal from the EU, he noted that "the plaintiff seeks only factual information concerning the 'draft proposal from the EU,' a request which assumes, of course, that the writers' opinions can be extricated neatly from the parts of the document discussing the E.U. proposal. The [DOJ] declaration states, however, that 'this material contains extensive edits and comments from U.S. HLCG experts as they work to refine draft language and statements or share their candid assessments of the implication for various draft language options under consideration in ongoing negotiations'. . ." Walton also rejected EFF's view of what constituted predecisional records. He noted that "the plaintiff takes a restrictive view of the 'predecisional' requirement, one which would require the DOJ to pinpoint a decision of the senior officials to which the briefing materials contributed. The Circuit, however, long ago rejected such an interpretation of the deliberative process privilege." Walton also upheld the agency's segregability analysis, particularly in light of his ruling concerning the deliberative nature of many of the factual references, except for a single document he found had not yet been adequately described.
Issues: Exemption 5 - Privileges - Waiver of privilege, Exemption 5 - Privileges - Deliberative process privilege - Deliberative | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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