The Foundation for Government Accountability v. U.S. Department of Justice

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

THE FOUNDATION FOR GOVERNMENT

ACCOUNTABILITY,

Plaintiff,

v. Case No: 2:22-cv-252-JLB-KCD

U.S. DEPARTMENT OF JUSTICE,

Defendant.

ORDER

In this Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, case, Plaintiff,

the Foundation for Government Accountability (“FGA”), requests that the Court

order Defendant, the United States Department of Justice (“DOJ”), to respond to

FGA’s FOIA requests and produce to FGA responsive documents related to

President Biden’s Executive Order 14019 (“EO 14019”). EO 14019 directed the

head of each executive agency, including DOJ, to submit to the White House a

Strategic Plan outlining the ways the agency can promote voter registration and

voter participation.

Before the Court is DOJ’s Motion for Summary Judgment (Doc. 50) and

FGA’s Cross-Motion for Summary Judgment and, Alternatively, for In Camera

Inspection and Limited Discovery and Opposition to Defendant’s Motion for

Summary Judgment (Doc. 52). DOJ has responded (Doc. 56), and FGA has replied

(Doc. 57). After careful review of the pleadings and the entire record before the

Court, the Court GRANTS in part and DENIES in part DOJ’s Motion for

Summary Judgment (Doc. 50) and GRANTS in part and DENIES in part FGA’s

Motion for Summary Judgment (Doc. 52).

The Court hereby orders DOJ to provide the Court for in camera review

copies of the withheld documents identified in Vaughn Index entries 53 and 71

because a genuine issue of material fact exists as to whether the deliberative

process privilege applies to those documents.

The Court further orders DOJ to provide the Court for in camera review a

copy of DOJ’s “STRATEGIC PLAN for the Implementation of Executive Order

14019, Promoting Access to Voting,” listed at the bottom of its Vaughn Index. This

Strategic Plan was identified as responsive to FGA’s FOIA request but was

withheld from disclosure based on DOJ’s contention that the presidential

communications privilege and the deliberative process privilege apply. Based on a

review of the entire record before the Court, viewing the facts in the light most

favorable to DOJ, the Court holds that the deliberative process privilege does not

apply to the Strategic Plan and that genuine issues of material fact remain as to the

applicability of the presidential communications privilege.

FACTS

On March 7, 2021, President Biden signed EO 14019, entitled “Promoting

Access to Voting.” 86 Fed. Reg. 13,623. Section 3(b) of EO 14019 provides as

follows: “Within 200 days of the date of this order, the head of each agency shall

submit to the Assistant to the President for Domestic Policy a strategic plan

outlining the ways identified under this review that the agency can promote voter

registration and voter participation.” Id. § 3(b).

FGA describes itself as “a non-partisan, non-profit organization that helps

millions achieve the American dream by improving welfare, work, health care, and

election integrity policy in the states and in Washington, D.C.” (Doc. 1 at ¶ 4). On

July 30, 2021, FGA submitted FOIA requests to DOJ, requesting the production of

documents containing the following information:

1. DOJ’s “strategic plan developed pursuant to [EO 14019] outlining ways

[the DOJ] identified . . . to promote voter registration and voter

participation, as directed by EO 14019.”

2. “[A] copy of the written explanation for the decision provided by the head

of [the] agency to President Biden, as directed by EO 14019” if DOJ

“declined to consent to a request by a State to be designated as a voter

registration agency pursuant to section 7(a)(3)(B)(ii) of the National Voter

Registration Act.”

3. “[A]ny formal notifications provided to any State in which [DOJ] provides

services notifying the State that [DOJ] would agree to designation as a

voter registration agency pursuant to section 7(a)(3)(B)(ii) of the National

Voter Registration Act.”

4. “[A]ll communications with the White House related to Executive Order

14019 and/or the strategic plan requested through EO 14019,” including

“any and all communications with the Vice President’s Office and staff, as

well as with Domestic Policy Advisor Susan Rice and her staff related to

EO 14019.”

5. “[A]ll communication between [DOJ] and the non-profit organization

Demos and/or any of its employees or officers or the 501(c)(4) organization

associated with Demos, known as ‘Demos Action,’ related to EO 14019,”

including “the dates, time, and purpose of any meeting(s), in-person or

remote, that [DOJ] conducted with Demos, Demos Action, or any of its

employees or officers.”

(See Doc. 1-2 at 2–3).

FOIA mandates that an agency “shall” have twenty business days to notify

the requestor of the agency’s “determination” as to “whether to comply with such

request” and to provide “the reasons therefor.” 5 U.S.C. § 552(a)(6)(A)(i). Section

552(a)(6)(B)(i)–(iii), however, provides that in “unusual circumstances,”1 the agency

may extend this time limit provided that it “notif[ies] the person making the

1 The statute defines “unusual circumstances” as:

(I) the need to search for and collect the requested records from field

facilities or other establishments that are separate from the office

processing the request;

(II) the need to search for, collect, and appropriately examine a

voluminous amount of separate and distinct records which are

demanded in a single request; or

(III) the need for consultation, which shall be conducted with all

practicable speed, with another agency having a substantial

interest in the determination of the request or among two or more

components of the agency having substantial subject-matter

interest therein.

5 U.S.C. § 552(a)(6)(B)(iii)(I)–(III).

request . . . and . . . provide[s] the person an opportunity to limit the scope of the

request so that it may be processed within that time limit or an opportunity to

arrange with the agency an alternative time frame for processing the request or a

modified request.”

On August 4, 2021, DOJ Civil Rights Division’s (“CRT”) FOIA Unit (“the

FOIA Unit”) sent an acknowledgment letter to FGA regarding its request and

assigned the request a request number. (Doc. 50-2 at 22–23). In this letter, CRT’s

FOIA Unit noted that FGA’s request would require the Unit to “examine a

voluminous amount of records” and to “consult with other offices in the Civil Rights

Division.” (Id. at 23). The FOIA Unit then noted that “[b]ecause of these unusual

circumstances, we are extending the time limit to respond to your request beyond

the ten additional days provided by the statute. The time needed to process your

request will necessarily depend on the volume and complexity of the records

located.” (Id.) The FOIA Unit offered FGA a chance “narrow the scope of [its]

request to limit the number of potentially responsive records or agree to an

alternative time frame for processing.” (Id.) The FOIA Unit also added that “there

may be some delay in the processing of [FGA]’s request” because of the COVID-19

pandemic. (Id.) The letter neither provided a specific time frame for the FOIA

Unit’s processing of FGA’s request, nor did it provide a date on which a

determination was expected to be dispatched. See 5 U.S.C. § 552(a)(6)(B)(i).

There is no record evidence that after receiving the acknowledgment letter,

FGA made an effort to “reasonably modify the request or arrange such an

alternative time frame.”2 See id. § 552(a)(6)(B)(ii). On March 23, 2022, nearly eight

months after receiving the letter acknowledging receipt of FGA’s request from

CRT’s FOIA Unit, Stewart Whitson, a Senior Fellow at FGA, emailed the Unit to

inquire about the status of FGA’s request. (See Doc. 1-3 at 2–3). Two days later,

April N. Freeman, a member of the FOIA Unit responded:

We referred your request to the Voting Section and the

Office of the Assistant Attorney General as the offices

likely to have information pertaining to your request. We

recently received information stating they are conducting

a search for responsive records. As soon as we receive their

response, we will review the information and process your

request accordingly. I’m unable to provide an estimate of

completion, but we hope to have a response to you soon.

Please note, the request number you provided was an auto-

generated number given by a system this office does not

monitor. For future inquiries, please reference request

number, 21-00271-F.

(Id. at 2).

On April 20, 2022, still having not heard whether DOJ would comply with

FGA’s requests, FGA filed this lawsuit to compel DOJ to search for and, where

appropriate, to produce responsive records. (Doc. 1 at ¶¶ 29–30). There are two

counts in FGA’s Complaint: Count I asserts that DOJ failed to comply with FOIA by

failing to (1) timely make and communicate its determination as to each of FGA’s

requests and (2) produce the records responsive to FGA’s FOIA requests; and Count

II asserts that DOJ should not assess any search fees associated with FGA’s FOIA

2 The statute states that such refusal is “a factor in determining whether

exceptional circumstances exist,” warranting “additional time” for the agency “to

complete its review of the records.” See 5 U.S.C. § 552(a)(6)(C)(iii).

request. (See id. at ¶¶ 22–35).

In the parties’ July 5, 2022 Case Management Report, DOJ stated that it

“ha[d] located approximately 5,500 records that are potentially responsive to FGA’s

FOIA request.” (Doc. 24 at 10). DOJ also stated that it “offered FGA a generous

processing rate of over 1,000 records per month,” which DOJ believed “would allow

[it] to conclude its responsiveness review by November 1, 2022, and to complete the

processing and production of any responsive, non-exempt documents by January 1,

2023.” (Id.) FGA, however, found January 1, 2023 too late a deadline to receive all

the documents, stating, “FGA needs the documents that it requested no later than

September [2022] to meaningfully make use of the documents, educate the public

regarding DOJ’s implementation of EO14019, and unearth any improper influence

that outside groups may be asserting over federal policies prior to the 2022

elections.” (Id. at 9) (emphasis in original).

The Magistrate Judge assigned to this case ordered DOJ to produce all non-

exempt documents by September 1, 2022. (Doc. 31). DOJ moved, unopposed, for a

one-week extension, (Doc. 34), which the Court granted, (Doc. 35; Doc. 37), and on

September 8, 2022, DOJ produced the responsive, non-exempt records, (Doc. 49 at ¶

2). Specifically, the “release comprised 135 pages with redactions and 15 pages

withheld in full pursuant to Exemptions 5 and 6[.]” (Doc. 50-2 at ¶ 33). The 135

pages of documents produced were responsive to Request 4, and, tangentially,

Request 5. (Id. at 26). DOJ also determined that the Strategic Plan identified by

the Senior Counsel was responsive to Request 1. (Id.) Finally, DOJ stated that it

found no records, which were responsive to Requests 2, 3, and 5. (Id. at 26–27).

DOJ has provided the Court with a sworn affidavit from Kilian Kagle, the

Chief of CRT’s FOIA Unit, outlining the steps the Unit took in identifying

responsive documents and applying exemptions, where appropriate. (See Doc. 50-

2). Mr. Kagle states that on October 4, 2021, CRT’s FOIA Unit began electronic

searches of emails sent or received by five individuals identified as having

potentially responsive records. (Doc. 50-2 at ¶¶ 15–16). The searches resulted in

5,057 potentially responsive records. (Id. at ¶ 22). These records were reviewed

three times, by three individuals within CRT’s FOIA Unit, including Mr. Kagle, and

ultimately the Unit decided that there were 49 responsive records, consisting of 135

pages of material. (Id. at ¶¶ 23–24).

Also on October 4, 2021, the Unit emailed “eight Senior Attorneys that had

been identified . . . as potentially having a nexus to the material,” and one of these

attorneys responded, furnishing a document that was the “STRATEGIC PLAN for

the Implementation of Executive Order 14019, Promoting Access to Voting.” (Id. at

¶ 25). A subsequent search, according to Mr. Kagle, “confirmed that the version [of

the Strategic Plan] provided by the Senior Counsel was indeed the final extant copy

as submitted via a secure communication pathway to the Executive Office of the

President.” (Id. at ¶ 27).

DOJ has also provided the Court with a declaration from Vanessa

Brinkmann, Senior Counsel in the Office of Information Policy (“OIP”) at DOJ.

(Doc. 50-4 at ¶ 1). Ms. Brinkmann stated that OIP reviewed the 49 records

identified by CRT’s FOIA Unit and “requested that CRT withhold certain

information pursuant to the presidential communications and deliberative process

privileges encompassed by FOIA Exemption 5.” (Id. at ¶ 5). CRT’s FOIA Unit then

produced a Vaughn Index3 “address[ing] the withholdings made by [CRT] and

[OIP], pursuant to FOIA Exemption 5, in CRT’s September 8, 2022 production.”

(Doc. 50-3 at 2). FGA challenges the withholdings shown at entries 12, 17, 51, 53,

71, and 132 in the Vaughn Index, as well as the 15-page Strategic Plan. (See id. at

2–22).

SUMMARY JUDGMENT STANDARD

FOIA cases are generally handled on motions for summary judgment once

the documents in dispute are properly identified. Miccosukee Tribe of Indians of

Florida v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008); Miscavige v. I.R.S., 2

F.3d 366, 369 (11th Cir. 1993). Summary judgment should be granted where,

viewing the facts in the light most favorable to the non-moving party, there exists

“no genuine issue as to any material fact” and the moving party “is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986).

In a FOIA case, an agency is entitled to summary judgment if it

3 When an agency applies a FOIA exemption to avoid disclosure of certain

documents, the agency must produce a “Vaughn Index,” which describes each

document withheld or redacted and provides an explanation of the reasons for non-

disclosure. See Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973) (creating a

“system of itemizing and indexing” that requires agencies invoking FOIA

exemptions to “correlate statements made in the . . . refusal justification with the

actual portions of the document”).

demonstrates that no material facts are in dispute, it has conducted an adequate

search for responsive records, and each responsive record which is located was

either produced to the plaintiff or is exempt from disclosure. Weisberg v. U.S. Dep’t

of Justice, 627 F.2d 365, 368 (D.C. Cir. 1980). The Eleventh Circuit has “h[e]ld that

in certain cases, affidavits can be sufficient for summary judgment purposes in [a]

FOIA case if they provide as accurate a basis for decision as would sanitized

indexing, random or representative sampling, in camera review, or oral testimony.”

Miscavige, 2 F.3d at 368. Such agency affidavits must “describe the justifications

for nondisclosure with reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and [not be] controverted by

either contrary evidence in the record nor by evidence of agency bad faith.” Larson

v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730

F.2d 773, 776 (D.C. Cir. 1984)). “Ultimately, an agency’s justification for invoking a

FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. (quoting Wolf

v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)). But the “‘burden is on the agency’ to

show that requested material falls within a FOIA exemption.” Petroleum Info.

Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (quoting 5

U.S.C. § 552(a)(4)(B) and citing Anderson, 477 U.S. at 254).

DISCUSSION

In DOJ’s Motion for Summary Judgment, DOJ argues that it “conducted an

adequate search and produced all responsive, non-exempt records” and that “any

withheld records or portions thereof fall within an exemption to FOIA.” (Doc. 50 at

1). In FGA’s Cross-Motion for Summary Judgment, FGA argues that “DOJ is

erroneously asserting executive privileges under Exemption 5 and unlawfully

withholding the Final Implementation Plan and other public records,” and that the

Court should order DOJ to produce those documents.

Specifically, FGA asks this Court to order disclosure of documents listed in

the Vaughn Index at entries 12 (two pages), 17 (four pages), 51 (two pages), 53 (six

pages), 71 (six pages), and 132 (four pages), and the separate, 15-page Strategic

Plan noted in the last entry of that Index. (Doc. 52 at 1–2). Alternatively, FGA

asks the Court to order an in camera review of those withheld documents. (Id. at

23–24).

I. Whether Exemption 5 Applies

The Court will first address whether DOJ’s application of Exemption 5 to the

above-referenced withheld documents was proper.

As an initial matter, “[t]he purpose of FOIA is to encourage public disclosure

of information so citizens may understand what their government is doing.” Off. of

Cap. Collateral Couns., N. Region of Fla. ex rel. Mordenti v. Dep’t of Just., 331 F.3d

799, 802 (11th Cir. 2003). “Accordingly, the records at issue in this [case] are

presumed to be subject to disclosure unless DOJ affirmatively establishes that the

requested records fall into one of FOIA’s exemptions.” Chilivis v. SEC, 673 F.2d

1205, 1210–11 (11th Cir. 1982).

Exemption 5, as set forth in section 552(b)(5) of FOIA, permits exemption

from FOIA disclosure any “inter-agency or intra-agency memorandums or letters

which would not be available by law to a party other than an agency in litigation

with the agency.” 5 U.S.C. § 552(b)(5). Exemption 5 “incorporates into FOIA the

statutory and common law privileges normally available to a party in civil

discovery.” Miccosukee, 516 F.3d at 1257. “Stated simply, [a]gency documents

which would not be obtainable by a private litigant in an action against the agency

under normal discovery rules (e.g., attorney-client, work product, executive

privilege) are protected from disclosure under Exemption 5.” Moye, O’Brien,

O’Rourke, Hogan, & Pickert v. Nat’l R.R. Passenger Corp., 376 F.3d 1270, 1277

(11th Cir. 2004) (quoting Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 481 (2d

Cir. 1999)).

Here, DOJ withheld various documents under Exemption 5. (See Doc. 50-2 at

26–27). Again, those withholdings, which FGA is challenging here, are found at

entries 12, 17, 51, 53, 71, 132, and in the last row in the Vaughn Index prepared by

DOJ. (See Doc. 50-3 at 2–22). The documents withheld include email chains

(Vaughn Index entries 17, 51), email attachments (Vaughn Index entries 12, 53, 71,

132), and a separate 15-page PDF containing DOJ’s strategic plan for implementing

EO 14019 (the “Strategic Plan”). (See id.) All these documents were withheld by

DOJ pursuant to Exemption 5’s deliberative process privilege, but the Strategic

Plan was also withheld pursuant to Exemption 5’s presidential communications

privilege. (See id.)

The purpose of Exemption 5’s “deliberative process privilege” is to “allow

agencies to freely explore possibilities, engage in internal debates, or play devil’s

advocate without fear of public scrutiny.” Moye, 376 F.3d at 1277. This privilege

serves to prevent the “premature disclosure of proposed policies before they have

been finally formulated or adopted and protect[s] against confusing the issues and

misleading the public by dissemination of documents suggesting reasons and

rationales for a course of action which were not in fact the ultimate reasons for the

agency’s action.” Id. (citation omitted). This includes “documents reflecting

advisory opinions, recommendations, and deliberations comprising part of a process

by which governmental decisions and policies are formulated.” Id. (citing N.L.R.B.

v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). “Even factual material

contained in a ‘deliberative’ document may be withheld pursuant to the privilege

where the disclosure of the factual material would reveal the deliberative process or

where the factual material is so inextricably intertwined with the deliberative

material that meaningful segregation is not possible.” Miccosukee, 516 F.3d at

1263.

For the deliberative process privilege to apply, two requirements must be

met. See Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8

(2001). “First, the material must be pre-decisional, i.e., ‘prepared in order to assist

an agency decision maker in arriving at his decision.’” Miccosukee, 516 F.3d at 1263

(quoting Renegotiation Bd. V. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184

(1975)). “Second, it must be deliberative, ‘a direct part of the deliberative process in

that it makes recommendations or expresses opinions on legal or policy matters.”

Id. “[T]he key question in Exemption 5 cases [is] whether the disclosure of

materials would expose an agency’s decisionmaking process in such a way as to

discourage candid discussion within the agency and thereby undermine the agency’s

ability to perform its functions.” Dudman Comms. Corp. v. Dep’t of Air Force, 815

F.2d 1565, 1568 (D.C. Cir. 1987).

“A ‘predecisional’ document is one prepared in order to assist an agency

decision-maker in arriving at his decision and may include recommendations, draft

documents, proposals suggestions, and other subjective documents which reflect the

personal opinions of the writer rather than the policy of the agency.” Moye, 376

F.3d at 1277. But “the privilege does not protect a document which is merely

peripheral to actual policy formation; the record must bear on the formulation or

exercise of policy-oriented judgment.” Grand Cent. P’ship, 166 F.3d at 481.

“A document is ‘deliberative’ if the disclosure of the materials would expose

an agency’s decision-making process in such a way as to discourage candid

discussion within the agency and, thereby, undermine the agency’s ability to

perform its functions.” Moye, 376 F.3d at 1278. “Therefore, courts must focus on

the effect of the material’s release . . . and conclude that predecisional materials are

privileged to the extent that they reveal the mental processes of decisionmakers.”

Id. (quotation omitted).

i. Vaughn Index Entry 12

DOJ asserts that Vaughn Index entry 12—entitled “[Draft] CRT memo on

IPC to Implement Voting EO.docx”—was properly withheld in full. (See Doc. 50 at

15–17; Doc. 50-3 at 4). In the Vaughn Index, the DOJ describes entry 12 as “a draft

document proposing answers to questions presented by the WHCO[4], containing

potential DOJ actions and issues related to the implementation of Executive Order

14019.” (Doc. 50-3 at 4–5). The Vaughn Index further notes that “[t]he draft

responses also include redline edits.” (Id.)

Mr. Kagle’s sworn affidavit states that:

The draft document was circulated on April 19, 2021,

months before DOJ sent its Strategic Plan regarding

potential implementation of [EO] 14019 to the White

House. The draft document contains potential DOJ actions

and potential issues related to the implementation of [EO]

14019. The draft document also contains redline edits to

the draft answers. This is an intra-agency document in

that the draft was circulated within CRT . . . . [T]he draft

document was used to inform later draft answers to the

questions from the White House Counsel’s office that were

created by DOJ leadership offices outside of the Civil

Rights Division. The individuals responsible for drafting

the draft answers in the withheld document were

responsible for providing preliminary advice to DOJ

leadership offices on potential eventual answers to provide

to the White House Counsel’s Office.

(Doc. 50-2 at ¶ 40).

The Court agrees that the document was predecisional. First, the document’s

unfinished state—including redline edits—indicates that it does not represent a

final determination or policy from the DOJ. Furthermore, because the document

was drafted on April 19, 2021, and the Strategic Plan was drafted on September 23,

2021, it is clear that these drafts pre-date the final Strategic Plan memorandum.

Finally, insofar as the document was drafted in order to answer questions posed by

4 DOJ defines WHCO in the Index as “White House Counsel’s Office.” (Doc.

50-3 at 2).

the White House Counsel’s Office, it was not “peripheral to actual policy formation”

but instead had an influence “on the formulation or exercise of policy-oriented

judgment.” Grand Cent. P’ship, 166 F.3d at 481. Accordingly, the DOJ’s description

of the withheld material confirms that such material is predecisional and

deliberative. See Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866

(D.C. Cir. 1980) (explaining that a document is predecisional where “it was

generated before the adoption of an agency policy”); see also Taylor Energy Co. LLC

v. United States Dep’t of Interior Bureau of Ocean Energy Mgmt., 271 F. Supp. 3d

73, 95 (D.D.C. 2017) (finding a draft version of a memorandum to be deliberative

where it contained comments and redline edits that clearly evinced an intention to

express tentative, not final, views).

FGA argues that rather than withholding the entire document, DOJ was

required to segregate properly privileged opinions from factual materials and

release the document with redactions over the former. (Doc. 52 at 23). While the

Court agrees that if there were factual materials contained in the draft document,

they would need to be released, see Buzzfeed, Inc. v. DOJ, 419 F. Supp. 3d 69, 78

(D.D.C. 2019) (“raw facts with informational value in their own rights” are not

exempt from FOIA, even if they are included in a draft document), there is no

indication based on the DOJ’s description of the document in the Vaughn Index or

Mr. Kagle’s description of the document in his affidavit, that the document contains

factual material. Instead, Mr. Kagle stated that “[t]he draft document contains

potential DOJ actions and potential issues related to the implementation of

Executive Order 14019.” (See Doc. 50-2 at ¶ 40) (emphasis added). The

identification of potential actions and issues does not strike the Court as purely

factual material, as it instead evinces the “exercises of discretion and judgment

calls” typical of the content of documents where Exemption 5 properly applies. See

Mapother v. Dep’t of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993) (explaining that

Exemption 5 applies where, as here, “the selection of facts thought to be relevant

clearly involves ‘the formulation or exercise of . . . policy-oriented judgment’ or ‘the

process by which policy is formulated’”) (emphasis in original).

Mr. Kagle’s affidavit provides a clear basis for the application of the

deliberative process privilege insofar as it outlines the conjectural nature of the

document and does not suggest that there is non-decisional factual material

contained therein. (Doc. 50-2 at ¶ 40). Because “affidavits can be sufficient for

summary judgment purposes in [a] FOIA case,” see Miscavige, 2 F.3d at 368, so long

as they “describe the justifications for nondisclosure with reasonably specific detail,

demonstrate that the information withheld logically falls within the claimed

exemption, and [not be] controverted by either contrary evidence in the record not

by evidence of agency bad faith,” Larson, 565 F.3d at 862, the Court finds that the

draft document found at Vaughn Index Entry 12 was properly withheld under the

deliberative process privilege included within Exemption 5.

ii. Vaughn Index Entries 17 and 51

DOJ also asserts that Vaughn Index entries 17 and 51—an email chain with

the subject line “RE: Voting EO Meeting”—were properly withheld in part. (See

Doc. 50 at 17–19; Doc. 50-3 at 5, 10). In the Vaughn Index, the DOJ describes

entries 17 and 51 as an “Email chain among CRT attorneys and other Executive

Branch employees. Withholdings consist of deliberative discussions of legal

research, suggestions, and proposed actions related to the implementation of

Executive Order 14019.” (Doc. 50-3 at 5, 10). For entry 51, further description is

added that “this email chain is a continuation of the email chain [at entry 17]. As

such, it continues the aforementioned conversation, and contains some duplicative

information also found [at entry 17].” (Id. at 10). Ms. Brinkmann’s declaration

addresses the withheld documents as follows:

The email chains . . . consist of two iterations of an internal

DOJ email discussion regarding the Department’s

development of the DOJ Strategic Plan . . . . Within the

withheld portions of the emails (which are all internal to

DOJ), a research question is posed by an ODAG[5]

employee, and internal deliberations begin as to research

into resources on voting rights. These deliberations

include discussion as to resources relied upon by DOJ

personnel in crafting the DOJ Strategic Plan, as well as

legal research conducted for the same purpose. These

deliberations further include DOJ commentary and

feedback on the aforementioned research, made for the

purpose of weighing potential options and determining

future action. Based on the internal research conducted,

as well as the subsequent deliberations, the emails contain

recommendations relevant to other components within

DOJ.

(Doc. 50-4 at ¶¶ 25–26). In sum, the withheld portions include: (1) a research

question, (2) discussions about resources on voting rights, (3) commentary and

5 Ms. Brinkmann defines “ODAG” as the Office of the Deputy Attorney General.

(Doc. 50-4 at 2).

feedback on resources, and (4) recommendations. (Id.) All of these materials are

pre-decisional in that they were “prepared in order to assist an agency decision

maker in arriving at his decision.” Miccosukee, 516 F.3d at 1263. Specifically, all of

these materials were prepared prior to, and in furtherance of, the ODAG employee’s

decision. See Senate of the Com. of Puerto Rico on Behalf of Judiciary Comm. v.

U.S. Dep’t of Just., 823 F.2d 574, 585 (D.C. Cir. 1987) (“A document is

‘predecisional’ if it precedes, in temporal sequence, the ‘decision’ to which it

relates.”).

Further, the Court finds that the withheld portions of entries 17 and 51—

insofar as they include questions, answers, comments, and recommendations—are

deliberative because they “reflect[ ] the give-and-take of the consultative process.”

Coastal States, 617 F.2d at 866. The email chain is therefore a clear example of

“communications [that], if revealed, would expose to public view the deliberative

process of an agency.” See Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048

(D.C. Cir. 1982). The Court therefore finds that based on the information in Ms.

Brinkman’s declaration, Exemption 5 applies to the materials that the DOJ

withheld from the email chain because such materials were sent in the midst of a

pre-decisional and deliberative process. See Miscavige, 2 F.3d at 368; Pub. Citizen,

Inc. v. United States Dep’t of Educ., 388 F. Supp. 3d 29, 50 (D.D.C. 2019) (holding

that where emails were sent “as a part of a pre-decisional and deliberative process

leading to the selection of a focus for [an event],” the redactions in those emails were

appropriate under the deliberative process privilege).

FGA argues that while “the redacted portions of the emails may contain some

opinions that are properly privileged . . . . DOJ . . . failed to explain its refusal to

segregate non-exempt material from the email threads.” (Doc. 52 at 23). It appears

that DOJ did segregate non-exempt material from the email threads, because the

withholdings in the email chains were only partial. First, the descriptions for

Vaughn Index entries 17 and 51 do not state that the documents were “withheld-in-

full” as other entries state. (Compare Doc. 50-3 at 10, with Doc. 50-3 at 11). Ms.

Brinkman confirmed this partial redaction in her declaration, averring that “the

deliberative process privilege [was] applied to . . . Vaughn entries 17 and 51, in

part.” (Doc. 50-4 at ¶ 6) (emphasis added).

Finally, a review of the email production demonstrates that DOJ’s redactions

omit areas where a staff member offered an opinion on a particular matter. For

example, a July 9, 2021 email in which a DOJ official answers her supervisor’s

question states, “I looked at the [redacted] . . . I’m happy to dig more into any of

this if it would be helpful—please let me know what you think.” (See Doc. 52-2 at

14–15). There is no indication that the redacted material constitutes anything

other than the proposed answer of the junior employee to her supervisor. This is

the archetypal form of communication protected by the deliberative process

privilege, insofar as it reflects an advisory opinion, recommendation, or

deliberation, tentatively made from a junior employee to her senior. See Klamath,

532 U.S. at 8–9 (“The deliberative process privilege rests on the obvious realization

that officials will not communicate candidly among themselves if each remark is a

potential item of discovery and front page news.”).

Thus, there is no record evidence supporting a finding that DOJ did not

segregate non-exempt material from the email threads. See Ancient Coin Collectors

Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (“Uncontradicted,

plausible affidavits showing reasonable specificity and a logical relation to the

exemption are likely to prevail.”). Accordingly, the Court finds that the DOJ

properly withheld the portions of internal email communications among DOJ

employees regarding DOJ’s development of its Strategic Plan under Exemption 5.

iii. Vaughn Index Entries 53 and 71

DOJ next argues that Vaughn Index entries 53 and 71—a Word document

email attachment titled, “Meeting with voting rights advocates – 7.13.2021

clean.docx”—were properly withheld in full (entry 71) and in part (entry 53). (See

Doc. 50 at 19–20; Doc. 50-3 at 10–11).

Specifically, in the Vaughn Index, the DOJ describes entries 53 and 71 as a

document “consist[ing] of notes that a DOJ employee took during a listening session

with stakeholders on voting rights issues in order to inform Executive Branch

deliberations on compliance with Executive Order 14019.” (Doc. 50-3 at 10–11).

For entry 71, the DOJ explains, “[t]his document is duplicative of” the document

found at entry 53. (Id. at 11). Mr. Kagle explained that Vaughn Index entry 53,

represents notes composed by a Department of Justice

representative—Ms. Carrie Pagnucco—while attending a

White House Listening Session hosting stakeholders. As

Senior Counsel in the CRT’s Front Office, Ms. Pagnucco

was assigned the role of overseeing DOJ’s strategic

planning process under EO 14019 . . . . The stakeholder

listening session that took place on July 12, 2021, was

organized by the Domestic Policy Council. Staff from

agencies working on EO implementation were invited to

join and hear from stakeholders, who shared their ideas for

what federal agencies could do to promote access to voting

pursuant to the Executive Order. Ms. Pagnucco was the

only person from DOJ who joined the listening session and

her notes reflected at Vaughn Index entry 53 were taken in

order to share with DOJ colleagues (in CRT’s Front Office,

OASG[6], and ODAG) and relay the ideas that participants

discussed.

(Doc. 50-2 at ¶ 41). Given that entry 71 is “duplicative of” entry 53, the Court

understands that Mr. Kagle’s description of the entry applies to both entries. The

DOJ’s redactions in Ms. Pagnucco’s notes are substantial, and aside from the names

of speakers at the “listening session” and their associated organizations, no other

information is provided. ( Doc. 52-4 at 2–11).

Certainly, the notes were pre-decisional in that they reflected “ideas for what

federal agencies could do to promote access to voting pursuant to the Executive

Order,” and the notes were meant to be shared with other DOJ colleagues. (Doc. 50-

2 at ¶ 41). Reps. Comm. for Freedom of the Press v. United States Customs &

Border Prot., 567 F. Supp. 3d 97, 123 (D.D.C. 2021), appeal dismissed, No. 21-5293,

2022 WL 801357 (D.C. Cir. Mar. 15, 2022) (“That a superior might review the notes

from the analyst buttresses the predecisional nature of the document.”).

Viewing the facts in the light most favorable to the DOJ, the Court cannot

determine as a matter of law that the notes were deliberative under Exemption 5.

6 Mr. Kagle’s affidavit indicates that OASG is the acronym used for “Office of the

Associate Attorney General.” (Doc. 50-2 at 6).

That is, if the notes are subjective, reflecting Ms. Pagnucco’s views about the

matters discussed at the “listening session,” then the document might be fairly

characterized as deliberative. Abramyan v. United States Dep’t of Homeland Sec., 6

F. Supp. 3d 57, 67 (D.D.C. Dec. 4, 2013) (holding that “[i]nsofar as they contain

commentary on [a speaker’s] credibility and recommendations . . . the handwritten

notes are . . . ‘quintessentially deliberative’”) (quoting Anguimate v. U.S. Dep’t of

Homeland Sec., 918 F. Supp. 2d 13, 19 (D.D.C. Jan. 24, 2013)). But if the notes “are

a straightforward factual recounting of [the] meeting . . . detailing what each of the

participants said,” then the notes are factual and not deliberative and were not

properly withheld under Exemption 5. See Gold Anti-Tr. Action Comm., Inc. v. Bd.

of Governors of Fed. Rsrv. Sys., 762 F. Supp. 2d 123, 137 (D.D.C. Feb. 3, 2011); see

Abramyan, 6 F. Supp. 3d at 67 (noting that a “verbatim transcript” of an interview

would not be deliberative).

Accordingly, the Court finds that DOJ must produce these documents for in

camera review. See Am. Civil Liberties Union v. U.S. Dep’t of Justice, 90 F. Supp.

3d 201, 216, n.2 (S.D.N.Y Mar. 3, 2015) (explaining that “in camera review may be

appropriate . . . ‘[w]hen the dispute turns on the actual contents of the documents’

as opposed to ‘when the dispute centers . . . on the parties’ differing interpretations

as to whether the exemption applies to such information”).

iv. Vaughn Index Entry 132

DOJ also argues that Vaughn Index entry 132—a Word document email

attachment titled, “FIN_Tick Tock for Voting Rights Consultations v2.docx—was

properly withheld in full. (See Doc. 50 at 21–22; Doc. 50-3 at 21–22). In the Vaughn

Index, the DOJ describes entry 132 as “an agenda for a consultation meeting on

Native American voting rights. The document contains embedded talking points

and options for participants that were not necessarily implemented at the meeting.”

(Doc. 50-3 at 21). Mr. Kagle describes the document as:

a template White House agenda and draft talking points to

accompany a White House meeting between Agency Heads

and Tribal Leaders on the topic of Voting Rights. This draft

“Tick Tock” was attached to a meeting invitation sent by

Tracy Goodluck in the Executive Office of the President to

dozens of Agency representatives. It represents a draft

agenda as envisioned by the Executive Office of the

President of meetings designed for purposes of assisting

the President in his decisionmaking and gleaning

constituent input in the process of shaping policies.

(Doc. 50-2 at 16). The Court finds that there is no genuine issue of material fact

that this document was predecisional and deliberative.

First, insofar as the document contained a template White House agenda and

draft talking points that were prepared and shared to agency heads prior to the

meeting at which they were to be used, the Court finds that the document is

predecisional. This is because the agenda and talking points were merely proposals

and did not need to be followed as written. In fact, the agency head attendees to

whom the draft agenda and draft talking points were provided could have chosen

not to stick to them at all. See Am. Ctr. for L. & Just. v. United States Dep’t of Just.,

325 F. Supp. 3d 162, 174 (D.D.C. Sept. 7, 2018) (holding that even final talking

points remain predecisional because “given that talking points are typically used on

the fly, it would rarely be the case that an official formally adopts” them); see also

Leopold v. Off. of Dir. of Nat’l Intel., 442 F. Supp. 3d 266, 285 (D.D.C. Feb. 18, 2020)

(finding documents containing “proposed talking points, anticipated questions, and

proposed answers” to be “pre-decisional because they were prepared and shared

prior to the occurrence of a press briefing or any other official communication which

would represent a final decision on [the defendant agency’s] official position on the

subject”).

The Court also finds that the document found at Vaughn Index entry 132 is

deliberative. Even if the template agenda and draft talking points were followed to

the letter at the White House meeting between agency heads and tribal leaders on

the topic of voting rights, Mr. Kagle’s sworn statement that the purpose of the

meeting was to “assist[ ] the President in his decisionmaking and gleaning

constituent input in the process of shaping policies,” (Doc. 50-2 at 16), indicates that

the agenda was related to policy development and not-yet-finalized policy decisions.

See Watkins L. & Advoc., PLLC v. United States Dep’t of Veterans Affs., 412 F.

Supp. 3d 98, 113 (D.D.C. Sept. 30, 2019) (“Agencies do not have to go so far as

‘identif[ying] a specific decision corresponding to each communication,’ as long as it

shows that ‘the document was generated as part of a definable decision-making

process.’”); Grand Cent. P’ship, 166 F.3d at 482 (explaining that considerations

informing whether a record is “deliberative” include “whether the document (i)

formed an essential link in a specified consultative process, (ii) reflects the personal

opinions of the writer rather than the policy of the agency,” and “(iii) if released,

would inaccurately reflect or prematurely disclose the views of the agency”). Thus,

because the template agenda and draft talking points “reflect[ed] advisory opinions,

recommendations and deliberations comprising part of a process by which

governmental decisions” regarding voting rights would be formulated, the draft

agenda was deliberative. See Sears, 421 U.S. at 150.

The Court therefore finds that the document found at Vaughn Index entry

132 was properly withheld in full. See id. at 153 (explaining that the deliberative

process privilege “calls for . . . the withholding of all papers which reflect the

agency’s group thinking in the process of working out its policy and determining

what its law shall be”).

v. DOJ’s Strategic Plan

Finally, DOJ argues that its Strategic Plan was properly withheld-in-full

based on the deliberative process privilege and the presidential communications

privilege. (Doc. 50 at 23). The Strategic Plan—whose full title is “STRATEGIC

PLAN for the Implementation of Executive Order 14019, Promoting Access to

Voting”—is described in the Vaughn Index as “the Department of Justice Strategic

Plan for implementing Executive Order 14019, as solicited by and submitted to the

White House. The strategic plan includes DOJ deliberations regarding potential

future actions.” (Doc. 50-3 at 22). Ms. Brinkmann explained:

Consistent with the parameters set forth by the White

House in the template for the interim plan provided to

agencies soliciting proposed agency actions, the DOJ

Strategic Plan highlighted certain DOJ non-enforcement

policy actions on voting matters, presented other potential

DOJ non-enforcement policy actions for consideration,

including potential timelines, budget impact, and possible

obstacles and ways to address them. Additionally, the DOJ

Strategic Plan identified specific non-enforcement policy

areas requiring further discussions between DOJ and the

White House. The DOJ Strategic Plan was solicited by the

White House in order to inform future policy decisions on

voting access and to assist the DPC7 in formulating advice

to give to the President in this area.

(Doc. 50-4 at ¶ 14). Ms. Brinkmann added:

Throughout this process, senior White House advisors read

and relied on the DOJ and other strategic plans in

formulating advice to the President, and highlights from

the DOJ Strategic Plan and other agencies’ plans were

included in briefing materials provided to the President.

This advice, in turn, informed the President on the extent

of DOJ and other agency actions and proposals on relevant

voting matters, and on areas where further Executive

Branch action might be needed or considered within the

scope of the President’s executive authority. Additionally,

this advice informed the President’s budgetary decisions,

legislative engagement, and his preparation for

engagements with external stakeholders.

( at ¶ 15).

a. “Secret Law” Doctrine

FGA argues that under the “secret law” doctrine, DOJ was “categorically

bar[red]” from invoking Exemption 5 as to the Strategic Plan, and “the Court

accordingly does not need to reach whether executive privileges apply to the Plan.”

( Doc. 52 at 10–14). To support this argument, FGA cites to section 552(a)(2)(A),

(B) of FOIA, which provides:

(2) Each agency, in accordance with published rules, shall

make available for public inspection in an electronic

format--

7 Ms. Brinkmann defines DPC as “Domestic Policy Council” in her declaration. (

Doc. 50-4 at ¶ 7).

(A) final opinions, including concurring and dissenting

opinions, as well as orders, made in the adjudication of

cases;

(B) those statements of policy and interpretations which

have been adopted by the agency and are not published in

the Federal Register[.]

5 U.S.C. § 552(a)(2)(A), (B). Nowhere, in this text, however, can the Court discern a

categorical ban on the invocation of Exemption 5 where “final opinions” or

“statements of policy and interpretations which have been adopted by the agency”

are present. As one court held when presented with arguments brought under the

“secret law” doctrine, “there is no textual basis in FOIA for a freestanding ‘secret

law doctrine.’ Notwithstanding the [requestor]’s policy arguments, this [c]ourt

declines the invitation to read a ‘secret law’ exception into the FOIA exemptions

without a statutory tether.” New York Times Co. v. U.S. Dep’t of Just., 872 F. Supp.

2d 309, 317 (S.D.N.Y. May 17, 2012).

This Court agrees. The Supreme Court has cautioned against adopting a

“text-light approach” to interpreting FOIA, particularly where there is “clear

statutory language.” Milner v. Dep’t of Navy, 562 U.S. 562, 573–74 (2011). Afterall,

courts “begin with the understanding that Congress ‘says in a statute what it

means and means in a statute what it says there.’” Hartford Underwriters Ins. Co.

v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (citing Connecticut Nat. Bank v.

Germain, 503 U.S. 249, 254 (1992)). Thus, it is well established that “when the

statute’s language is plain, the sole function of the courts—at least where the

disposition required by the text is not absurd—is to enforce it according to its

terms.” Id. After a careful reading of Exemption 5’s text, the Court declines to hold

that there is a “secret law” exception to the exemption. The Court instead turns to

whether the privileges asserted by DOJ under Exemption 5 apply to the Strategic

Plan.

b. The deliberative process privilege does not apply to

the Strategic Plan.

DOJ argues that the deliberative process privilege contained in Exemption 5

applies to DOJ’s Strategic Plan. (Doc. 50 at 22–23). Specifically, DOJ argues that

the Strategic Plan was predecisional because it included “proposed plans,”

“deliberations,” and “anticipated timelines.” (Id. at 22). FGA, however, argues that

the Strategic Plan is not predecisional because it was a final plan crafted by the

DOJ which constitutes the DOJ’s formal policy. (Doc. 52 at 11–14). After careful

review, the Court agrees with FGA, and finds that Exemption 5’s deliberative

process privilege does not apply to the Strategic Plan.

As noted above, the deliberative process privilege is rooted in “the obvious

realization that officials will not communicate candidly among themselves if each

remark is a potential item of discovery and front page news.” Klamath, 532 U.S. at

8–9. But, as the Supreme Court recently noted, “[t]his rationale does not apply . . .

to documents that embody a final decision, because once a decision has been made,

the deliberations are done.” United States Fish & Wildlife Serv. v. Sierra Club, Inc.,

141 S. Ct. 777, 785 (2021). As a result, “documents reflecting a final agency

decision and the reasons supporting it . . . are not” predecisional. Id. at 785–86. To

decide whether a document communicates a policy on which the agency has settled,

the Supreme Court has instructed that:

courts must consider whether the agency treats the

document as its final view on the matter . . . . When it does

so, the deliberative process by which governmental

decisions and policies are formulated will have concluded,

and the document will have real operative effect . . . . In

other words, once cited as the agency’s final view, the

document reflects the consummation of the agency’s

decisionmaking process and not a merely tentative position

. . . . By contrast, a document that leaves agency

decisionmakers free to change their minds does not reflect

the agency’s final decision.

Id. at 786.

Here, the undisputed record evidence reflects that the Strategic Plan was the

DOJ’s finalized answer in response to the White House’s directive in Section 3(b) of

EO 14019 that, “within 200 days of the date of [the EO], the head of each agency

shall submit to the Assistant to the President for Domestic Policy a strategic plan

outlining the ways identified under this review that the agency can promote voter

registration and voter participation.” 86 Fed. Reg. 13624. First, the Vaughn Index

indicates that the Strategic Plan was sent from “Department of Justice (OASG and

CRT)” to “Susan Rice, Assistant to the President of Domestic Policy.” (Doc. 50-3 at

22). The document was sent on September 23, 2021, exactly 200 days after the

President issued EO 14019 (March 7, 2021), such that any later version of the

document would have failed to comply with section 3(b) of the Executive Order.

(See id.); 86 Fed. Reg. 13624.

In light of the Supreme Court’s instruction that a court must evaluate the

documents “in the context of the administrative process which generated them,” the

Court finds that here, the fact that the document was sent on the last possible day

on which agencies could send their proposals to Ambassador Rice indicates that the

Strategic Plan was not an opinion that was subject to change. See Sears, 421 U.S.

at 138. Given that September 23, 2021 occurred months after the other documents

and email communications about EO 14019 identified by DOJ, a factfinder could

draw the reasonable inference that the Strategic Plan represented a culmination of

those prior communications. (See Doc. 50-3 at 4–22).

Further, the title of the document does not include the word “draft” or any

other term which might indicate that the document contains provisional or

unsettled policy. (Compare id. at 22, with id. at 12 (identifying “[Draft] CRT memo

on IPC to Implement Voting EO.dox”)). While not determinative, this failure to

label the document as a draft indicates that the Strategic Plan was not an opinion

that was subject to change. See United States Fish & Wildlife Serv., 141 S. Ct. at

786 (finding that where the agency identified the documents in question as “drafts,”

the draft label indicated that the “drafts [we]re what they sound like: opinions that

were subject to change” because “[a] draft is, by definition, a preliminary version of

a piece of writing subject to feedback and change”).

Additionally, Mr. Kagle testified that while the Strategic Plan was “marked

Pre-Decisional / Deliberative,” after the FOIA Chief corresponded with the Deputy

Associate Attorney General in OASG, “[i]t was confirmed that the version provided

by the Senior Counsel was indeed the extant copy as submitted via a secure

communication pathway to the Executive Office of the President.” (Doc. 50-2 at ¶¶

25, 27) (emphasis added). Finally, DOJ has introduced no evidence that the

Strategic Plan is not already being applied by DOJ, signifying that the process of

formulating possible strategies for achieving the goals set out in EO 14019 has

concluded at the agency. Thus, even though the document contains proposed plans

and anticipated timelines, the non-final nature of these elements of the document

would be consistent with EO 14019’s request for a “strategic plan outlining the ways

. . . that the agency can promote voter registration and voter participation.” 86

Fed. Reg. 13624. Any response to this directive would contain “proposed” or

“anticipated” elements because the strategic plan is designedly forward-looking.

That is, EO 14019 does not ask for a report on the ways the agency has promoted

voter registration and participation, but instead solicits a plan by which the agency

can promote those goals. In sum, the Strategic Plan was not “prepared in order to

assist an agency decision-maker in arriving at his decision,” but instead was the

final decision of OASG and CRT and reflected the policy of the DOJ. Moye, 376 F.3d

at 1277.

Accordingly, because the Strategic Plan (1) is not a draft document, (2)

represents the culmination of the DOJ’s deliberative process as to EO 14019, (3)

reflects the DOJ’s final determination as to how it can effectuate the goals outlined

in EO 14019, (4) does not specifically contemplate further review by the agency

after Ambassador Rice received the draft, and (5) appears to be in effect as the

DOJ’s operative plan to “promote voter registration and voter participation,” it is

not predecisional. See Wisdom v. U.S. Tr. Program, 232 F. Supp. 3d 97, 120 (D.D.C.

Jan. 13, 2017) (holding that “an agency may not cast records as predecisional when

they actually convey what the agency’s policymakers have decided”). Thus, the

Court finds that the deliberative process privilege does not apply to the Strategic

Plan.

c. There is a genuine dispute of material fact as to whether

the presidential communications privilege applies to

the Strategic Plan and accordingly, in camera review is

warranted.

DOJ next asserts that it properly withheld the Strategic Plan in its entirety

pursuant to the presidential communications privilege. (See Doc. 50 at 10–13). The

Court notes, as a threshold matter, that the presidential communications privilege

is neither found within the text of the FOIA statute, nor is it found in the text of the

Constitution. See Trump v. Thompson, 20 F.4th 10, 26 (D.C. Cir. 2021). Instead,

the presidential communications privilege arose from the Supreme Court’s holding

in United States v. Nixon—a case which involved a grand jury subpoena for tape

recordings of President Nixon’s conversations in the Oval Office—wherein the

Supreme Court instructed that there is “a presumptive privilege for presidential

communications,” which is “fundamental to the operation of Government and

inextricably rooted in the separation of powers under the Constitution.” United

States v. Nixon, 418 U.S. 683, 708 (1974). Later, in Nixon v. Administrator of Gen.

Services, the Supreme Court stated, “the privilege is limited to communications ‘in

performance of (a President’s) responsibilities,’ ‘of his office,’ and made ‘in the

process of shaping policies and making decisions.’” Nixon v. Administrator of Gen.

Services, 433 U.S. 425, 447 (1977).

“The privilege covers documents reflecting presidential decisionmaking and

deliberations, regardless of whether the documents are predecisional or not, and it

covers the documents in their entirety.” Judicial Watch, Inc. v. Dep’t of Justice, 365

F.3d 1108, 1114 (D.C. Cir. 2004). And “[t]he privilege extends to the President’s

immediate advisers because of the need to protect ‘candid, objective, and even blunt

or harsh opinions,’ for . . . ‘[a] President and those who assist him must be free to

explore alternatives . . . and to do so in a way many would be unwilling to express

except privately.’” Id. at 1115 (quoting Nixon I, 418 U.S. at 708).

The purpose of the privilege is to “preserve[ ] the President’s ability to obtain

candid and informed opinions from his advisors and to make decisions

confidentially.” Loving v. Dep’t of Def., 550 F.3d 32, 38 (D.C. Cir. 2008); In re Sealed

Case, 121 F.3d 729, 745 (D.C. Cir. 1997) (explaining that “the presidential privilege

is based on the need to preserve the President’s access to candid advice”). “The

President can invoke the privilege when asked to produce documents or other

materials that reflect presidential decisionmaking and deliberations and that the

President believes should remain confidential. If the President does so, the

documents become presumptively privileged.” In re Sealed Case, 121 F.3d at 744.

“While the presidential communications privilege and the deliberative process

privilege are closely affiliated, the two privileges are distinct and have different

scopes. Both are executive privileges designed to protect executive branch

decisionmaking, but one applies to decisionmaking of executive officials generally,

the other specifically to decisionmaking of the President.” Id. at 745.

As noted above, DOJ has the burden to prove that a given exemption applies.

Campbell, 164 F.3d at 30. Citing to various portions of Ms. Brinkmann’s

declaration, DOJ argues that the presidential communications privilege applies

because Ambassador Rice solicited and received the Strategic Plan and formulated

advice to the President based on those plans. (Doc. 50 at 11). Specifically, as Ms.

Brinkmann states in her declaration, members of Ambassador Rice’s staff, among

others from the WHCO, “compiled highlights from the agency strategic plans for

Ambassador Rice’s use in White House policy formulation and in briefing the

President.” (Doc. 50-4 at ¶ 15). Further, senior White House advisers “informed

the President on the extent of DOJ and other agency actions and proposals on

relevant voting matters, and on areas where further Executive Branch action might

be needed or considered within the scope of the President’s executive authority.”

(Id.) Ms. Brinkmann summarizes OIP’s view that the Strategic Plan was covered

by the presidential communications privilege because it “was solicited by the White

House in order to inform future policy decisions on voting access and to assist the

DPC in formulating advice to give to the President on matters of presidential

decisionmaking, and was in fact submitted to Ambassador Rice, a senior White

House advisor, for this purpose[.]” (Id. at ¶ 24).

There is no dispute that Ambassador Rice’s position qualifies her as a “White

House adviser with broad and significant responsibility for investigating and

formulating the advice to be given to the President.” Loving, 550 F.3d at 37

(quotation omitted). What is disputed, however, is whether the Strategic Plan

reflects “presidential decisionmaking and deliberations” and whether the President,

or his staff, seemed to have believed that the Strategic Plan “should remain

confidential.” In re Sealed Case, 121 F.3d at 744–45.

i. The cases cited to by DOJ where the

presidential communications privilege was

properly invoked are readily distinguishable

from this case.

To support its argument that the Strategic Plan reflects such decisionmaking

and deliberations, DOJ cites two recent cases wherein other district courts found

that the presidential communications privilege was properly applied. (See Doc. 50

at 12).

In the more recent of these two cases, New York Times Co. v. Off. of Mgmt. &

Budget, the documents at issue were emails between the Office of Management and

Budget’s (“OMB”) Principal Associate Director for National Security Programs and

an Assistant to the President regarding the hold that President Donald J. Trump

placed on financial assistance to Ukraine. 531 F. Supp. 3d 118, 122 (D.D.C. Mar.

29, 2021). The emails in question arose after President Trump tasked his assistant

with “soliciting, collecting, and relaying information about the United States

government’s security assistance funding to Ukraine . . . so that he could advise the

President about this matter.” New York Times Co. v. Off. Of Mgmt. & Budget, No.

1:19-cv-3562, (ECF 30-1 at ¶ 12) (September 14, 2020). Specifically, President

Trump’s assistant confirmed that “because OMB was continually gathering legal

and factual information about the scope and duration of the hold on military aid to

Ukraine, [he] had specifically requested that [OMB] apprise him of developments in

those deliberations because such developments could change the substance of his

advice to the President.” (Id. at ¶ 14). Thus, while none of the emails constituted

communications to or from the President, there were statements in some of the

emails “that reveal[ed] Presidential communications or deliberations,” which the

court found to be covered by the privilege. New York Times Co., 531 F. Supp. 3d at

125.

The second case cited to by DOJ, Buzzfeed, Inc. v. FBI, involved “materials

collected as part of the FBI’s supplementary background investigation into then-

Judge Brett Kavanaugh.” Buzzfeed, Inc. v. FBI, 613 F. Supp. 3d 453, 458 (D.D.C.

May 7, 2020). This supplemental background investigation was undertaken at the

direction of “an authorized official within the White House Counsel’s Office” “after

allegations of sexual misconduct against then-Supreme Court nominee Brett

Kavanaugh became public.” Id. at 459. There, “[t]he FOIA requests at issue sought

‘a copy of the final report sent to the White House and the Senate Judiciary

Committee’ and ‘[a]ll interview notes; investigative notes; FD-302s relating or

referring to the FBI investigation into allegations leveled against Mr. Kavanaugh.’”

Id. The Buzzfeed court found that the presidential communications privilege

applied because the supplemental background investigation “was requested to

assist the President ‘effectively and faithfully carry out his Article II duties,’ in line

with the overarching purpose of the privilege.” Id. at 468 (quoting Judicial Watch,

365 F.3d at 1115).

In so finding, the Buzzfeed court explained that the WHCO “specifically

communicated to the FBI ‘that the disclosure of the [supplemental background

investigation file] would inhibit the President’s ability to engage in effective

communications and decision-making by interfering with the ability of the

President to seek and obtain candid information.’” Id. The court reasoned that

because “the appointment of Supreme Court justices is a core, nondelegable

presidential duty specifically enumerated in Article II of the Constitution . . . the

critical importance of this function also presents a heightened ‘need for

confidentiality to ensure that presidential decision-making is of the highest

caliber.’” Id. (quoting In re Sealed Case, 121 F.3d at 750).

The materials requested in New York Times and Buzzfeed are markedly

dissimilar to the Strategic Plan requested by FGA here. First, the emails sought in

New York Times related to a matter of pressing national security—namely the

security assistance funding that the U.S. was providing to a country at war.

Meanwhile, the FBI communications requested in Buzzfeed were intimately tied

with the President’s Article II powers and concerned a highly delicate matter—

namely a supplemental background investigation predicated on sexual misconduct

allegations against a Supreme Court nominee. Furthermore, in both cases, the

White House’s requests for information were made discretely, out of the public view,

through emails drafted by staff on behalf of the President, acknowledging the

sensitivity of the matters discussed therein. See New York Times¸ No. 1:18-cv-2567,

(ECF 30-1 at ¶ 56). In these communications, the White House made clear to the

appropriate agency that the information requested would be used to inform the

formulation of advice to the President. (See id. at ¶ 14). And in both cases, there

were clear decisions to be made by the President, and those forthcoming decisions

were known to all parties: namely, what to do with respect to (1) national security

funding for Ukraine in New York Times, and (2) the appointment of then-Judge

Kavanagh to the Supreme Court in Buzzfeed.

In sum, given the urgency and import of the materials at issue in New York

Times and Buzzfeed, the utility of the presidential communications privilege was

readily apparent. See In re Sealed Case, 121 F.3d at 750 (explaining that the

presidential communications privilege protects “the need for confidentiality to

ensure that presidential decision-making is of the highest caliber”); see also Judicial

Watch, 365 F.3d at 1115 (explaining that the presidential communications privilege

allows the President to “effectively and faithfully carry out his Article II duties and

to protect the effectiveness of the executive decision-making process”). That is, with

respect to information specifically requested by the President related to matters of

national security and the appointment of a Supreme Court Justice, the importance

of the presidential communications privilege, which is “rooted in constitutional

separation of powers principles and the President’s unique constitutional role” is at

its apex. See In re Sealed Case, 121 F.3d at 745.

Based on the summary judgment record before the Court, the Strategic Plan

here shares none of these characteristics. The Strategic Plan was drafted in

response to a public, widely disseminated executive order, which specifically

outlined issues, which each agency head should consider in formulating a strategic

plan geared towards achieving the executive order’s goals. These are:

(i) ways to provide relevant information in the course

of activities or services that directly engage with the

public—including through agency materials, websites,

online forms, social media platforms, and other points of

public access—about how to register to vote, how to request

a vote-by-mail ballot, and how to cast a ballot in upcoming

elections;

(ii) ways to facilitate seamless transition from agencies’

websites directly to State online voter registration systems

or appropriate Federal websites, such as Vote.gov;

(iii) ways to provide access to voter registration services

and vote-by-mail ballot applications in the course of

activities or services that directly engage with the public,

including:

(A) distributing voter registration and vote-by-mail ballot

application forms, and providing access to applicable State

online systems for individuals who can take advantage of

those systems;

(B) assisting applicants in completing voter registration

and vote-by-mail ballot application forms in a manner

consistent with all relevant State laws; and

(C) soliciting and facilitating approved, nonpartisan third-

party organizations and State officials to provide voter

registration services on agency premises[.]

86 Fed. Reg. 13623–24. Compared to data regarding U.S. Government spending on

military support for a country at war, information unearthed about a Supreme

Court nominee in an FBI background investigation, or confidential conversations in

the Oval Office between a President and his aides during a criminal prosecution, see

Nixon I, 418 U.S. at 703, an agency’s plans for improving its website and social

media presence, distributing voter registration forms, and providing voter

registration services are simply not akin to the type of “high-level communications”

critical to ensuring that the President may “effectively and faithfully carry out his

Article II duties,” Judicial Watch, 365 F.3d at 1115. Given that “[c]onfidentiality is

the touchstone of the privilege, for ‘[c]onfidentiality is what ensures the expression

of candid, objective, and even blunt or harsh opinions’ and the comprehensive

exploration of all policy alternatives before a presidential course of action is

selected,” the Court, viewing the evidence in the light most favorable to the DOJ,

cannot find as a matter of law that DOJ properly withheld the Strategic Plan

pursuant to the presidential communications privilege at this juncture. Ctr. for

Effective Gov’t v. U.S. Dep’t of State, 7 F. Supp. 3d 16, 24–25 (D.D.C. Dec. 17, 2013)

(quoting In re Sealed Case, 121 F.3d at 750).

ii. The record is devoid of evidence indicating

that anyone in the White House believed, until

the FGA’s FOIA request, that the Strategic

Plan should remain confidential.

Further, nowhere in Ms. Brinkmann’s declaration does she state explicitly

that the Strategic Plan is confidential or that “the President believes [the Strategic

Plan] should remain confidential.” In re Sealed Case, 121 F.3d at 744. Instead, she

merely states that the purpose of the presidential communications privilege is to

ensure that the President is “able to receive confidential advice of all kinds, from a

variety of sources” and that the release of the Strategic Plan “would impose a

significant chilling effect on presidential decisionmaking, as it would hinder the

ability of the President and senior presidential advisors to obtain frank, unfettered

information and advice from” DOJ. (Doc. 50-4 at ¶ 17). But the basic contours of

the Strategic Plan were known to the public well before the Strategic Plan was

made, insofar as the agencies were directed by section 3(a) of EO 14019 to include

each of the above-quoted issues in their “evaluat[ion of the] ways in which the

agency can, as appropriate and consistent with applicable law, promote voter

registration and voter participation.” 86 Fed. Reg. 13623. That is, the decision to

“promot[e] access to voting” had already been made by the President by virtue of the

issuance of EO 14019, and the topics that the agencies were asked to cover in their

evaluations of ways to promote access to voting were already outlined in Section

3(a). The fact that the framework, goal, and issues to be considered in the Strategic

Plan were already decided by the White House in a public manner indicates that

the information and advice given to the President through DOJ’s Strategic Plan

would not be very “frank” and “unfettered” to begin with. Nor would the Strategic

Plan’s utility to the President’s decision-making about “promoting access to voting”

be particularly robust insofar as it post-dated the President’s determination that:

Free and fair elections that reflect the will of the American

people must be protected and defended. But many

Americans, especially people of color, confront significant

obstacles to exercising that fundamental right . . . . It is

the policy of my Administration to promote and defend the

right to vote for all Americans who are legally entitled to

participate in elections. It is the responsibility of the

Federal Government to expand access to, and education

about, voter registration and election information, and to

combat misinformation, in order to enable all eligible

Americans to participate in our democracy . . . . Agencies

shall consider ways to expand citizens’ opportunities to

register to vote and to obtain information about, and

participate in, the electoral process.

86 Fed. Reg. 13623. In sum, a trier of fact could reasonably find that the President

did not believe that the Strategic Plan “should remain confidential” because the

policy prescriptions to be embodied in the Strategic Plan were made public in EO

14019. , 913 F.3d at 1111; see also Ctr. for Effective Gov’t, 7 F. Supp.

3d at 26 (where the “fact sheet” associated with a purportedly confidential

communication was released to the public and “described in detail the goals and

initiatives set forth therein,” the court found that “the widely publicized nature of

[the document] is important in considering the confidentiality interests implicated

by the directive’s disclosure under FOIA”).

In fact, at least one other agency which was directed to craft a Strategic Plan

under EO 14019 apparently did not believe that its Strategic Plan was confidential

because it made its Strategic Plan available to the public. Specifically, on August 8,

2021, the Department of Defense (“DOD”) published a document titled, Federal

Voting Assistance Program Strategic Plan 2021–2025, on its website, stating, “[i]n

response to Executive Order 14019, ‘Promoting Access to Voting,’ March 10, 2021,

FVAP adjusted its strategic plan to reflect . . . the need to increase overall voter

awareness for all individuals affiliated with the Department and those receiving

assistance.” See DOD, Federal Voting Assistance Program Strategic Plan 2021–

2025, at 2, https://www.fvap.gov/uploads/FVAP/Policies/StratPlan 20210802.pdf

(last accessed August 25, 2023). And indeed, the DOD’s Strategic Plan discusses

many of the issues outlined by the White House in section 3(a) of EO 14019. Thus,

a genuine dispute of material fact exists as to whether the White House (or the

agencies in the Executive Branch) believed that each agency’s Strategic Plan should

remain confidential, and the Court cannot determine as a matter of law that DOJ’s

withholding was proper. See Nixon I, 418 U.S. at 707 (holding that privileging

presidential communications “on no more than a generalized claim of the public

interest in confidentiality of nonmilitary and nondiplomatic discussions would upset

the constitutional balance of a ‘workable government’ and gravely impair the role of

the courts under Article III”).

iii. Ms. Brinkmann’s sworn statements regarding

the role of the Strategic Plan in guiding

presidential decisionmaking are contradicted

by the record evidence.

The Court next finds that a trier of fact could reasonably find that the

Strategic Plan was unrelated to presidential decisionmaking. As quoted in full

above, Ms. Brinkmann stated that the President and his staff would use the

document to inform future policy decisions on voting access. Specifically, Ms.

Brinkmann asserted that “the DOJ Strategic Plan was solicited by the White House

in order to inform future policy decisions on voting access and to assist the DPC in

formulating advice to give to the President in this area.” (Doc. 50-4 at ¶ 14). Ms.

Brinkmann added that the DOJ Strategic Plan “informed the President’s budgetary

decisions, legislative engagement, and his preparation for engagements with

external stakeholders.” ( at ¶ 15). These statements lack sufficient detail and

are contradicted by the record evidence.8

8 DOJ’s apparent efforts to expand the presidential communications privilege from

its origin—protecting recordings of President Nixon discussing confidential matters

with aides in the Oval Office—to protecting any document solicited and received by

White House advisers and their staff are concerning. It cannot be that every

document that is received by the President’s immediate White House advisers and

their staff is protected by the presidential communications privilege so long as those

advisers and their staffs may, at some point, rely on the document to brief the

President on some matter. Were that the policy, agencies could elide FOIA’s

congressionally enacted purpose—to “pierce the veil of administrative secrecy and to

open agency action to the light of public scrutiny,” see Morley v. C.I.A., 508 F.3d

1108, 1114 (D.C. Cir. 2007)—and withhold any document merely by sending it to

any White House adviser or their staff.

First, there is no text in EO 14019 suggesting a give and take process

between agencies and the White House as to the information contained in the

Strategic Plan. Nowhere in EO 14019 is the word “advice” or “recommendation”

used with respect to the Strategic Plan, nor is there any indication from the text of

EO 14019 that the White House would be giving feedback to the agency on their

planned course of action. This is notable because elsewhere in EO 14019 the term

“recommendation” is used to direct other entities within the Executive Branch to

conduct specific tasks in furtherance of the goals outlined in EO 14019.

For example, section 10(d) states that the Native American Voting Rights

Steering Group “shall produce a report within 1 year of the date of this order

outlining recommendations for” protecting the voting rights of Native Americans.

86 Fed. Reg. 13626. And section 6(a) states that the Director of the Office of

Personnel Management shall, within 200 days of the date of EO 14019, “coordinate

with the heads of executive agencies . . . to provide recommendations to the

President . . . on strategies to expand the Federal Government’s policy of granting

employees time off to vote.” at 13625. These sections of EO 14019, which solicit

“recommendations” not “strategic plans” are notably far more open-ended than

section 3(a) and section 3(b) in that they do not contain long lists of issues to be

considered, and they do not request a particular format in which such issues are to

be addressed.

Second, Ms. Brinkmann’s statement that the Strategic Plan “informed the

President’s budgetary decisions, legislative engagement, and his preparation for

engagements with external stakeholders” is so lacking in detail that the Court

cannot possibly find that DOJ has met its burden of proving the applicability of

Exemption 5 on this assertion alone. ( Doc. 50-4 at ¶ 15). “Legislative

engagement” is a vague, undefined term that could mean anything from actually

making decisions on voting rights legislation proposed by Congress to posting a

press release about the Biden Administration’s voting rights initiatives on social

media. The same is true of “engagements with external stakeholders” which could

be deliberative, brainstorming sessions between the President and third-party

organizations focused on voting rights or photo opportunities with voters.

Finally, even if the Strategic Plan had an advisory purpose with respect to

the President’s “budgetary decisions,” the OMB released the FY 2023 budget in

2022, indicating that the budgetary advice included in the Strategic Plan has been

distributed extensively such that “the purposes animating the privilege”—namely

“candor and confidentiality”—“will not justify its application.”

, 7 F. Supp. 3d at 26, 29. Specifically, the FY 2023 budget allocated $367

million to DOJ for “civil rights protection[,]” including the “enforcement of voting

rights[,]” as well as “expand[ing] investigations of election-related crimes, including

voter suppression.”

, 81–82 (2022) (available at https://www.whitehouse.gov/wp-

content/uploads/2022/03/budget fy2023.pdf). Thus, DOJ’s “submissions have not

adequately explained how the information contained within the withheld

documents differs from the information that the Administration has publicly

disseminated.” Brennan Ctr. for Just. at New York Univ. Sch. of L. v. United States

Dep’t of State, No. 17 CIV. 7520 (PGG), 2019 WL 10984173, at *7 (S.D.N.Y. Mar. 29,

2019).

Given the lack of clarity surrounding the Strategic Plan’s purportedly

advisory role, the Court finds that a reasonable interpretation of section 3(b) would

be that the White House is requesting the agencies to report on their intended

plans, thereby assuring agency compliance with, and promotion of, the goals of EO

14019. This reading is also consistent with Ms. Brinkmann’s sworn statement.

There, Ms. Brinkmann states that members of Ambassador Rice’s staff “compiled

highlights from the agency strategic plans” and used these highlights to brief the

President “on the extent of DOJ and other agency actions and proposals on relevant

voting matters[.]” (Doc. 50-4 at ¶ 15). Thus, a plausible understanding of the role

of the Strategic Plan in the President’s work to promote access to voting could be

that the Strategic Plan provided assurance to the White House that the expansive

complex of agencies and officials operating under the Executive Branch were acting

in unison to accomplish the President’s goals, not that the strategic plans provided

recommendations or advice to the President. The Court therefore cannot find based

on the evidence before it that the Strategic Plan constitutes an aspect of

presidential decision-making. , 365 F.3d at 1118 (“Extending the

presidential communications privilege to cover . . . internal [DOJ] documents would

be both contrary to executive privilege precedent and considerably undermine the

purposes of FOIA to foster openness and accountability in government.”).

Because “[i]n FOIA cases, summary judgment may [not] be granted on the

basis of agency affidavits if they [do not] contain reasonable specificity of detail . . .

and if they are [ ] called into question by contradictory evidence in the record,”

Aguiar v. DEA, 865 F.3d 730, 734–35 (D.C. Cir. 2017), the Court will not grant

summary judgment in favor of DOJ here. Simply put, the Court is not convinced

based on the caselaw identified by DOJ, and the Court’s careful review of the record

evidence, that “[t]he Strategic Plan . . . falls squarely within the scope of the

presidential communications privilege” because it “reflects presidential

decisionmaking and deliberations,” as DOJ asserts. (Doc. 50 at 12).

Instead, the Court concludes that in camera review of the Strategic Plan is

the appropriate means to resolve the parties’ dispute. See Quinon v. F.B.I., 86 F.3d

1222, 1228 (D.C. Cir. 1996) (“[I]n camera review may be particularly appropriate

when . . . the agency affidavits are insufficiently detailed to permit meaningful

review of exemption claims or there is evidence of bad faith on the part of the

agency.”). While the Court is aware that another district court recently found at the

summary judgment stage that the presidential communications privilege applies to

EO 14019, see Am. First Legal Found. v. U.S. Dep’t of Agric., No. CV 22-3029 (BAH),

2023 WL 4581313 (D.D.C. July 18, 2023), the Court, for the reasons explained,

cannot draw the same conclusion. As the Supreme Court noted in Nixon I:

Absent a claim of need to protect military, diplomatic, or

sensitive national security secrets, we find it difficult to

accept the argument that even the very important interest

in confidentiality of Presidential communications is

significantly diminished by production of such material for

in camera inspection with all the protection that a district

court will be obliged to provide.

Nixon I, 418 U.S. at 706; see also Am. Civil Liberties Union v. Dep’t of Justice, No.

15 CIV. 1954 (CM), 2016 WL 889739, at *5 (S.D.N.Y. Mar. 4, 2016) (ordering in

camera review of “Presidential Policy Guidance” where “it is certainly possible that

the claimed [presidential communications] privilege applies[,] [b]ut the court does

not know how widely the document has been distributed, or to whom, ... [or]

whether any part of it ... closely tracks the information that was [publicly]

disclosed”).

CONCLUSION

For the foregoing reasons, the Court GRANTS FGA’s Motion for Summary

Judgment to the extent that it requests that the Court order in camera review of

the Strategic Plan to determine the applicability of the presidential communications

privilege.

The Court further GRANTS FBA’s motion for summary judgment and orders

in camera review of Vaughn Index entries 53 and 71 to determine the applicability

of the deliberative process privilege.

The Court DENIES with prejudice FGA’s Motion for Summary Judgment to

the extent that it argues that DOJ violated FOIA by applying Exemption 5 to the

documents found at Vaughn Index entries 12, 17, 51, and 132.

The Court also GRANTS DOJ’s Motion for Summary Judgment to the extent

that it argues that it did not violate FOIA by applying Exemption 5 to the

documents found at Vaughn Index entries 12, 17, 51, and 132.

The Court DENIES without prejudice DOJ’s Motion for Summary

Judgment to the extent that it argues that it did not violate FOIA by applying

Exemption 5 to the Strategic Plan and to the documents found at Vaughn Index

entries 53 and 71.

On or before September 8, 2023 DOJ will provide the Court with copies of the

documents identified in Vaughn Index entries 53 and 71, as well as the Strategic

Plan identified in the Vaughn Index such that the Court can conduct an in camera

review to evaluate the DOJ’s stated justifications for withholding disclosure of those

documents to FGA.

ORDERED at Fort Myers, Florida on August 25, 2023.

LOD holtlles Lr

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

50