# Judicial Watch, Inc. v. U.S. Department of Justice

> District Court, District of Columbia · February 28, 2014 · 20 F. Supp. 3d 260

URL: https://www.frixlaw.com/law-library/cases/2659435

## Case

- **Full name:** JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE, Et Al. Defendants
- **Court:** District Court, District of Columbia
- **Decided:** February 28, 2014
- **Citations:** 20 F. Supp. 3d 260; 2014 U.S. Dist. LEXIS 25612
- **Precedential status:** Published
- **Opinion:** Opinion by Howell
- **Judges:** Judge Beryl A. Howell
- **Nature of suit:** Civil
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2659435

## How later opinions describe it (automated extraction)

- acknowledging existence of records responsive to request for all OLC records related to a decision by the Department of Homeland Security

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC.,

Plaintiff,

v. Civil Action No. 12-01350 (BAH)
Judge Beryl A. Howell
U.S. DEPARTMENT OF JUSTICE, et al.

Defendants.

MEMORANDUM OPINION

The plaintiff Judicial Watch, Inc. brought this case under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, to challenge the processing by the defendants, the U.S. Department of

Justice (“DOJ”) and the U.S. Department of Homeland Security (“DHS”), of the plaintiff’s FOIA

request for records regarding a DHS program announced on June 15, 2012, referred to as the

Deferred Action for Childhood Arrivals (“DACA”). Pending before the Court are cross-motions

for summary judgment as to whether DHS has properly withheld two responsive documents

under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), as subject to attorney-client and deliberative

process privileges.1 For the reasons set out below, the Court grants the defendants’ motion for

summary judgment and denies the plaintiff’s cross-motion for summary judgment.

1
In response to the defendants’ motion for summary judgment, the plaintiff has conceded that the defendants
performed an adequate search and that all but two responsive documents are properly withheld. Pl.’s Mem. Opp’n
Defs.’ Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Partial Summ. J. (“Pl.’s Mem.”) at 5. Consequently, summary
judgment is granted, as conceded, to the defendants as to those issues.

1
I. FACTUAL AND PROCEDURAL BACKGROUND

A. FOIA REQUEST

On June 15, 2012, DHS Secretary Janet Napolitano announced the implementation of a

new DHS program called DACA, under which DHS would, in its exercise of prosecutorial

discretion, consider for relief from removal from this country or from entering into removal

proceedings, “certain young people who were brought to the United States as young children, do

not present a risk to national security or public safety, and meet several key criteria.” See Pl.’s

Mem. Opp’n Defs.’ Mot. Summ. J. & Supp. Pl.’s Cross-Mot. Partial Summ. J. (“Pl.’s Mem.”) at

1, ECF No. 17 (quoting Department of Homeland Security Press Release dated June 15, 2012).

In addition, individuals subject to the DACA program would be “eligible for employment

authorization during the period their removal action is deferred.” Decl. of John R. Sandweg,

Acting General Counsel of DHS (“Sandweg Decl.”) ¶ 4, ECF No. 19-1. Secretary Napolitano

issued a corresponding memorandum to the U.S. Customs and Border Protection, U.S.

Citizenship and Immigration Services, and U.S. Immigration Customs Enforcement agencies

instructing the agencies on implementation of the DACA program. Pl.’s Mem. at 2 –3.

The plaintiff, a non-profit foundation, submitted FOIA requests to DHS and to the DOJ

Office of Legal Counsel (“OLC”) on June 22, 2012, seeking: “[a]ll records concerning,

regarding, or relating to [DHS’] decision to exercise prosecutorial discretion with respect to

individuals who came to the United States as children as outlined in a June 15, 2012,

Memorandum by Secretary Napolitano.” See Decl. of James V. M. L. Holzer (“Holzer Decl.”),

Ex. A at 1, ECF No. 15-3;2 Decl. of Paul P. Colborn (“Colborn Decl.”) Ex. 1 at 1–2, ECF No.

2
The exhibits attached to the Holzer Declaration are not marked with any exhibit number or letter. See Exhibit
Holzer Decl., ECF No. 15-4. Consequently, the exhibits are identified here by letters A–E according to references to
the exhibits in the text of the Holzer Declaration.

2
15-11. The request to DHS specified that this included “communications, meeting notes and

agenda, briefing materials, and policy memoranda,” and also requested “[a]ll records concerning,

regarding, or relating to the legal authority for the DHS decision . . . .” Holzer Decl. Ex. A at 1.

B. THE PLAINTIFF’S LAWSUIT AND AGENCIES’ RESPONSES TO FOIA
REQUESTS

The plaintiff filed suit on August 15, 2012, to compel the defendants to conduct

reasonable searches and produce non-exempt records pursuant to the plaintiff’s FOIA requests,

as well as to award the plaintiff attorneys’ fees and other litigation costs. Complaint (“Compl.”)

¶ 18, ECF No. 1. At that time, DHS and OLC were still reviewing potentially responsive

records. See Holzer Decl. ¶ 12; Colborn Decl. ¶ 9–11.

The following month, OLC informed the plaintiff that, out of the eighty responsive

documents identified in the agency’s search, six documents were produced, one was referred to

the DOJ’s Office of Information Policy, and the remaining records were withheld pursuant to

FOIA Exemption 5. See Colborn Decl., Ex. 3 at 1.

DHS identified 2,039 responsive pages of documents and, in three separate releases on

February 27, 2013, March 1, 2013, and March 4, 2013, produced 387 pages to the plaintiff in

their entirety and 322 pages with redactions. See Holzer Decl., Exs. C–E at 7–12.3 DHS

withheld the remaining pages claiming they were exempt from disclosure under FOIA

Exemption 5, as subject to the deliberative process privilege and/or the attorney-client privilege,

as well as Exemptions 6 and 7E. See 5 U.S.C. § 552(b)(5)–(7). See Holzer Decl. ¶¶ 22–35.

3
The Holzer declaration appears to contain a slight discrepancy in the number of pages released by DHS. According
to the cover letter of DHS’ second interim response, dated March 1, 2013, DHS released 16 pages in their entirety
and partially released 163 pages. See Holzer Decl. Ex. D at 9. By contrast, the Holzer declaration itself summarizes
the second interim response as disclosing 33 pages in full and 162 pages in part. See Holzer Decl. ¶ 20. This
discrepancy is immaterial to resolution of the pending motions.

3
The defendants’ pending motion for summary judgment argues that the search for records

responsive to the plaintiff’s request was adequate, Defs.’ Mem. Supp. Defs.’ Mot. Summ. J.

(“Defs.’ Mem.”) at 3–9, ECF No. 15-1, and that records were properly withheld under

Exemptions 5, id. at 9–16, 6, and 7E, id. at 17–19. In its cross-motion for partial summary

judgment, the plaintiff “elected not to challenge the reasonableness of the searches and a

majority of the withholdings,” but contends that DHS is improperly withholding two records,

which are listed as Documents 6 and 7 on the Vaughn index produced with DHS’ first interim

response on February 27, 2013. Pl.’s Mem. at 5; see also Vaughn Index, DHS First Release at 2,

ECF No. 15-5. DHS subsequently submitted an updated Vaughn Index, see Pl.’s Mem. at 7 n.1;

id. Ex. A at 3–4 (“Updated Vaughn Index”), which provides additional detail regarding the

justification for the withholding of Documents 6 and 7.4

C. THE TWO CHALLENGED DOCUMENTS

As noted, the plaintiff is challenging the withholding by DHS of only two documents.

According to the Updated Vaughn Index and a supplemental declaration submitted by the Acting

General Counsel of DHS, Document 6 is a four-page, single-spaced memorandum, dated June

14, 2012, for Secretary Napolitano from DHS General Counsel Ivan Fong titled “Authority to

Exercise Deferred Action for a Discrete Class of Individuals.” See Updated Vaughn Index at 3;

Sandweg Decl. ¶ 7. This record was withheld in full under Exemption 5 “to protect from

disclosure deliberative communications and privileged attorney-client communication regarding

the adoption of a new departmental policy pertaining to the Deferred Action Process.” Updated

4
DHS’ initial Vaughn index, released with its February 27, 2013, production of records indicated that Documents 6
and 7 were withheld pursuant to the attorney work product privilege in addition to the deliberative process privilege
and the attorney-client privilege. See Vaughn Index, DHS First Release at 2. DHS’ Updated Vaughn Index,
submitted on March 27, 2013, claimed only the deliberative process privilege and the attorney-client privilege with
regard to Documents 6 and 7, thereby dropping the work product privilege as a basis for withholding. See Updated
Vaughn Index at 3–4.

4
Vaughn Index at 3. It is undisputed that Document 6 is a “summary of a White Paper on

Deferred Action” that “discusses in detail, the Secretaries [sic] authority to grant deferred

action.” Id; see also Sandweg Decl. ¶ 7 (indicating that document 6 summarizes document 7);

Pl.’s Mem. at 8 (“Document 6 is a summary of Document 7.”).

Document 7, also dated June 14, 2012, is described in the Updated Vaughn Index and

supplemental declaration as a 21-page white paper on deferred action. Updated Vaughn Index at

3–4; Sandweg Decl. ¶ 7.5 This White Paper was authored by DHS’ Office of General Counsel

and was withheld in full under Exemption 5 because it contained “deliberative communications

and privileged attorney-client communication.” Updated Vaughn Index at 4; see also Sandweg

Decl. ¶¶ 7–11. The document “outlines the Secretaries [sic] general authority to exercise

prosecutorial discretion as part of her charge to enforce the immigration laws.” Updated Vaughn

Index at 4.

Both documents are marked “PRIVILEGED ATTORNEY-CLIENT

COMMUNICATION,” Sandweg Decl. ¶ 6, and “PREDECISIONAL AND DELIBERATIVE,”

id. ¶ 11, and both discuss the DHS Secretary’s “authority to exercise deferred action” using

“legal issues, relevant case law, assessments of judicial review, statutory responsibilities, legal

authority to enforce immigration laws, and options to reduce legal risk.” Id. ¶ 7. Both

documents were created and submitted to the Secretary of DHS in response to “the Secretary’s

request for legal advice from DHS’s Office of the General Counsel (OGC), and were intended as

confidential legal advice.” Id. ¶ 8. The documents were “concurrent with” and “part of a

discussion about potential approaches to the proposed deferred action policy and legal

considerations.” Id. ¶ 11. The issues “were being considered by Senior Department officials,” id.

5
The Bates numbers that identify this document indicate that the document is twenty pages long, not twenty-one
pages. See Updated Vaughn Index at 3–4 (listing Bates numbers for Document 7 as spanning 01057–01077). The
discrepancy does not affect the Court’s analysis.

5
¶ 11, and “helped to inform and guide the Secretary in arriving at the final decision.” Id. ¶ 12.

The plaintiff seeks release of these two documents on grounds that they are improperly withheld

under Exemption 5 or, in the alternative, asks the Court to conduct in camera review of the

documents before ruling on DHS’ exemption claim. Pl.’s Mem. at 8–13.

II. LEGAL STANDARD

A. FOIA

Congress enacted the FOIA to promote transparency across the government and “ ‘permit

access to official information long shielded unnecessarily from public view.’ ” Milner v. U.S.

Dep’t of the Navy, 131 S. Ct. 1259, 1262 (2011) (quoting EPA v. Mink, 410 U.S. 73, 80 (1973)).

The Supreme Court has explained that the FOIA is “a means for citizens to know ‘what their

Government is up to.’ This phrase should not be dismissed as a convenient formalism. It

defines a structural necessity in a real democracy.” Nat’l Archives & Records Admin. v. Favish,

541 U.S. 157, 171–72 (2004) (citation and internal quotation marks omitted). “The basic

purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to hold the governors accountable to the

governed.” NLRB v. Robbins Tire & Rubber Co, 437 U.S. 214, 242 (1978); see also SEC v. Am.

Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) (“The public has a fundamental interest in ‘keeping a

watchful eye on the workings of public agencies.’ ” (quoting Wash. Legal Found. v. U.S.

Sentencing Comm’n, 89 F.3d 897, 905 (D.C. Cir. 1996))). To this end, the FOIA requires federal

agencies to release all records responsive to a request for production unless the responsive

records fall within one of nine exemptions. See 5 U.S.C. § 552(a)(3)(A), (b); Mink, 410 U.S. at

79.

6
The exemptions, under 5 U.S.C. § 552(b), permitting agencies to withhold information

from FOIA disclosure, are designed to protect “legitimate governmental and private interests

[that] could be harmed by release of certain types of information.” United Techs. Corp. v. U.S.

Dep’t of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks omitted). “These

exemptions are explicitly made exclusive, and must be narrowly construed.” Milner, 131 S.Ct.

at 1262 (citations and internal quotation marks omitted); see also Pub. Citizen, Inc. v. Office of

Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010) (“FOIA allows agencies to withhold only

those documents that fall under one of nine specific exemptions, which are construed narrowly in

keeping with FOIA’s presumption in favor of disclosure.”) (citation omitted). Upon exhaustion

of administrative remedies, a FOIA requester may file a civil action challenging an agency’s

response to its request. See 5 U.S.C. § 552(a)(4)(B); Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir.

2004). Once such an action is filed, the agency generally has the burden of demonstrating that

its response to the plaintiff’s FOIA request was appropriate. See id. at 678. Federal courts are

authorized under the FOIA “to enjoin the agency from withholding agency records and to order

the production of any agency records improperly withheld from the complainant.” 5 U.S.C. §

552(a)(4)(B).

B. Summary Judgment

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). When an agency’s response

to a FOIA request is to withhold responsive records, either in whole or in part, the agency “bears

the burden of proving the applicability of claimed exemptions.” Am. Civil Liberties Union v.

U.S. Dep’t of Def. (“ACLU/DOD ”), 628 F.3d 612, 619 (D.C. Cir. 2011). The government may

sustain its burden of establishing that requested records were appropriately withheld through the

7
submission of declarations detailing the reason that a FOIA exemption applies, along with an

index, as necessary, describing the materials withheld. See, e.g., id. at 619; Students Against

Genocide v. U.S. Dep’t of State, 257 F.3d 828, 840 (D.C. Cir. 2001); Vaughn v. Rosen, 484 F.2d

820, 827–28 (D.C. Cir. 1973). “If an agency’s affidavit describes the justifications for

withholding the information with specific detail, demonstrates that the information withheld

logically falls within the claimed exemption, and is not contradicted by contrary evidence in the

record or by evidence of the agency’s bad faith, then summary judgment is warranted on the

basis of the affidavit alone.” ACLU/DOD, 628 F.3d at 619; see also Judicial Watch, Inc. v. U.S.

Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (“ ‘[S]ummary judgment may be granted on the

basis of agency affidavits if they contain reasonable specificity of detail rather than merely

conclusory statements, and if they are not called into question by contradictory evidence in the

record or by evidence of agency bad faith.’ ” (quoting Consumer Fed’n of Am. v. U.S. Dep’t of

Agric., 455 F.3d 283, 287 (D.C. Cir. 2006) and Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir.

1994))). While the burden remains on the moving party to demonstrate that there is an “absence

of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986), in FOIA cases, “an agency’s justification for invoking a FOIA exemption is sufficient if

it appears ‘logical’ or ‘plausible.’ ” ACLU/DOD, 628 F.3d at 619 (quoting Larson v. U.S. Dep’t

of State, 565 F.3d 857, 862 (D.C. Cir. 2009)).

III. DISCUSSION

The two challenged documents that remain at issue in this litigation, Documents 6 and 7,

as identified in DHS’ Updated Vaughn Index, are being withheld by DHS pursuant to the

deliberative process privilege and the attorney-client privilege under Exemption 5. Pl.’s Mem.at

8
7. FOIA Exemption 5 allows agencies to withhold “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). In construing “this somewhat Delphic provision,” U.S. Dep’t

of Justice v. Julian, 486 U.S. 1, 11 (1988), the Supreme Court has held that, to be properly

withheld under Exemption 5, “a document must . . . satisfy two conditions: its source must be a

Government agency, and it must fall within the ambit of a privilege against discovery under

judicial standards that would govern litigation against the agency that holds it.” U.S. Dep’t of

Interior v. Klamath Water Users Protective Ass’n (“Klamath Water”), 532 U.S. 1, 8 (2001).

The challenged documents were drafted by DHS’ Office of General Counsel or the DHS

General Counsel and directed to DHS Secretary Napolitano. Sandweg Decl. ¶ 7–8. Thus, the

plaintiff does not dispute that they are “inter-agency or intra-agency memorandums or letters.”

See 5 U.S.C. § 552(b)(5); Pl.’s Mem. at 8–13. The only issue is whether the documents “fall

within the ambit of a privilege against discovery.” Klamath Water, 532 U.S. at 8. Exemption 5

incorporates those civil discovery privileges enjoyed by any private party in litigation, including

the attorney-client and attorney work product privileges, and the deliberative process privilege,

which “covers ‘documents reflecting advisory opinions, recommendations and deliberations

comprising part of a process by which governmental decisions and policies are formulated.’ ” Id.

at 8 (quoting NLRB v. Sears, Roebuck & Co. (“Sears”) , 421 U.S. 132, 150 (1975)); see also

Loving v. U.S. Dep’t of Def., 550 F.3d 32, 38 (D.C. Cir. 2008); Baker & Hostetler LLP v. U.S.

Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006); Rockwell Int’l Corp. v. U.S. Dep’t of

Justice, 235 F.3d 598, 601 (D.C. Cir. 2001). The Supreme Court has acknowledged that “[t]he

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”

9
and, thus, “its object is to enhance ‘the quality of agency decisions,’ by protecting open and

frank discussion among those who make them within the Government.” Klamath Water, 532

U.S. at 8–9 (citations omitted); see also Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997)

(“the deliberative process privilege . . . reflect[s] the legislative judgment that ‘the quality of

administrative decision-making would be seriously undermined if agencies were forced to

operate in a fishbowl because the full and frank exchange of ideas on legal or policy matters

would be impossible’” (internal quotation marks omitted) (quoting Mead Data Cent., Inc. v. U.S.

Dep’t of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977))).

Nevertheless, “[i]n keeping with the Act’s policy of the fullest responsible disclosure,

Congress intended Exemption 5 to be as narrow as is consistent with efficient Government

operations.” FTC v. Grolier, Inc., 462 U.S. 19, 23 (1983) (citation omitted); see also Sears, 421

U.S. at 149 (“[I]t is reasonable to construe Exemption 5 to exempt those documents, and only

those documents, normally privileged in the civil discovery context.”).

As explained below, DHS has met its burden of showing that invocation of the

deliberative process privilege is appropriate and that the two challenged documents are exempt

from disclosure.

A. Parameters of the Deliberative Process Privilege

Before evaluating whether the two challenged documents fall within the deliberative

process privilege, the Court first examines the prerequisites for invocation of this privilege. The

D.C. Circuit has explained that “[t]o qualify for Exemption 5 protection under the deliberative

process privilege, ‘an agency’s materials must be both predecisional and a part of the

deliberative process.’ ” Nat’l Inst. of Military Justice v. U.S. Dep’t of Def., 512 F.3d 677, 680

n.4 (D.C. Cir. 2008) (internal quotation marks omitted) (quoting Formaldehyde Inst. v. U.S.

10
Dep’t of Health & Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989)). “[T]he word

‘deliberative’ as used in the law of Exemption 5 is considerably narrower than the colloquial

meaning; as a consequence, the ‘deliberative’ and ‘predecisional’ requirements tend to merge.

Both terms have come to apply only to documents that contribute to an ongoing deliberative

process within an agency.” Access Reports v. U.S. Dep’t of Justice, 926 F.2d 1192, 1195 (D.C.

Cir. 1991) (emphasis in original). Consequently, the law is well-settled that “[t]he agency must

establish ‘what deliberative process is involved, and the role played by the documents in issue in

the course of that process.’ ” Senate of P.R. v. U.S. Dep’t of Justice, 823 F.2d 574, 585–86 (D.C.

Cir. 1987) (quoting Coastal States Gas Corp. v. Dep’t of Energy (“Coastal States”), 617 F.2d

854, 868 (D.C. Cir. 1980)). Merely stamping on the face of the documents that they are subject

to the deliberative process privilege is not sufficient. See Fox News Network, LLC v. U.S. Dep’t

of the Treasury, 678 F. Supp. 2d 162, 168 (S.D.N.Y. 2009) (finding that it is not “an article of

faith that a document labeled ‘Draft’ is automatically protected by the deliberative process

privilege”) (citing New York Times Co. v. U.S. Dep’t of Def., 499 F. Supp. 2d 501, 515 (S.D.N.Y.

2007)). Instead, at least four inter-related factors may be gleaned from the case law as

significant in making the fact-specific determination that a responsive document is properly

withheld under the deliberative process privilege.

First, courts determine whether a document is predecisional by looking at the timing of

the document’s release relative to the date the decision is made. See Judicial Watch, Inc. v.

FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (finding “a document predecisional if ‘it was generated

before the adoption of an agency policy’ ”) (citing Coastal States, 617 F.2d at 866); COMPTEL

v. FCC, 910 F. Supp. 2d 100, 121 (D.D.C. 2012) (same); Am. Immigration Council v. U.S. Dep’t

of Homeland Sec., 905 F. Supp. 2d 206, 217–18 (D.D.C. 2012) (predecisional means “antecedent

11
to the adoption of an agency policy” (quoting Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 774

(D.C. Cir. 1978) (en banc), overruled in part on other grounds, Crooker v. ATF, 670 F.2d 1051

(D.C. Cir. 1981) (en banc))); Nat’l Right to Work Legal Def. & Educ. Found., Inc. v. U.S. Dep’t

of Labor, 828 F. Supp. 2d 183, 189 (D.D.C. 2011) (“The timing of a record is important in the

analysis; communications made after a decision has been made and designed to explain that

decision are not privileged under Exemption 5.”) (citing Sears, 421 U.S. at 151–52).

Second, courts look to the relationship between the author and recipient of the document

to determine whether a person in the author’s position, particularly a subordinate, would

typically provide advice to a person in the recipient’s position as part of the decision-making

process. See Schlefer v. United States, 702 F.2d 233, 238 (D.C. Cir. 1983) (“Intra-agency

memoranda from ‘subordinate’ to ‘superior’ on an agency ladder are likely to be more

‘deliberative’ in character than documents emanating from superior to subordinate,” and finding

that with respect to Chief Counsel opinions sought in FOIA request, “the Chief Counsel and

requesting officials ultimately occupy a superior-subordinate relationship” rendering deliberative

process privilege inapplicable); Taxation With Representation Fund v. IRS, 646 F.2d 666, 679

(D.C. Cir. 1981) (“[F]actor to be considered in determinations with respect to . . . the deliberative

process privilege is the nature of the decisionmaking authority vested in the office or person

issuing the disputed document.”); Vaughn v. Rosen, 523 F.2d 1136, 1146 (D.C. Cir. 1975)

(finding that “Exemption 5 is designed to protect subordinates’ advice to superiors”); Arthur

Andersen & Co. v. IRS, 679 F.2d 254, 259 (D.C. Cir. 1982) (noting that documents were

deliberative in part because the “flow of the documents was from subordinate to superior”);

Brinton v. U.S. Dep’t of State, 636 F.2d 600, 605 (D.C. Cir. 1980) (noting that the “flow of

12
advisory material is exactly opposite to the paradigm of ‘final opinions,’ which typically flow

from a superior with policy-making authority to a subordinate who carries out the policy”).

The D.C. Circuit stressed this second factor over twenty years ago in considering

Exemption 5, explaining that:

[a] key feature under both the ‘predecisional’ and ‘deliberative’ criteria is the
relation between the author and recipients of the document. A document from a
junior to a senior is likely to reflect his or her own subjective opinions and will
clearly have no binding effect on the recipient. By contrast, one moving from
senior to junior is far more likely to manifest decisionmaking authority and to be
the denouement of the decisionmaking rather than part of its give-and-take.

Access Reports, 926 F.2d at 1195. In that case, the Circuit reversed the district court and found

that Exemption 5’s deliberative process privilege justified the withholding of a memorandum,

which was drafted by a staff attorney at the request of superiors and contained legal analysis

about pending legislation that had already been forwarded by the agency to Congress. Id. at

1193, 1197. The Court noted the deliberative nature of the challenged document since it was

“ammunition for the expected fray, in part as advice on whether and when to duck.” Id. at 1196.

Notably, as in Access Reports, documents generated by legal counsel within agencies to advise

more senior officials regarding a decision to be made by the latter have regularly been found

subject to the deliberative process privilege. See, e.g., Arthur Andersen & Co., 679 F.2d at 259

(finding that drafts of documents reviewed by the Office of Chief Counsel and others were

deliberative because “all the participants [reviewing the document] up to the Commissioner were

without authority to make a final determination”); Brinton, 636 F.2d at 602 (exempting from

disclosure memoranda containing legal advice from the Legal Adviser to the Secretary of State

in part because documents “originated in the Office of the Legal Adviser, who has no authority

to make final decisions . . . [i]nstead, his role is to give advice to those in the State Department

who do make the policy decisions”); Murphy v. U.S. Dep’t of Army, 613 F.2d 1151, 1154 (D.C.

13
Cir. 1979) (holding that privilege covers memoranda from Army General Counsel to Assistant

Secretary advising on whether to enter into a contract).

Even if the relationship between the author and recipient of challenged records is not one

of subordinate and superior officials, when the role of the author is as an advice-giver rather than

a decision-maker, this militates in favor of the document qualifying as part of the deliberative

process. See, e.g., Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 8 (D.C. Cir. 2014)

(finding that OLC legal memorandum prepared at request of FBI did not “establish the ‘working

law’ of the FBI” and was covered under the deliberative process privilege); Renegotiation Bd. v.

Grumman Aircraft Eng’g Corp., 421 U.S. 168, 185 (1975) (holding that Regional Board Reports

were predecisional and deliberative in part because the authors “had no legal authority to decide”

the particular issue which “only the [Renegotiation] Board could decide”).

Due to the significance of this second factor, the agency “must describe ‘the nature of

the decisionmaking authority vested in the office or person issuing the disputed document(s), and

the positions in the chain of command of the parties to the documents.’ ” Elec. Frontier Found.

v. U.S. Dep’t of Justice, 826 F. Supp. 2d 157, 168 (D.D.C. 2011) (quoting Arthur Andersen &

Co., 679 F.2d at 258).

Third, courts assess the nature of the discussion in the challenged document and,

specifically, whether it sets out the author’s view of options and considerations regarding an

agency’s policy or, rather, explains or expresses the policy itself. See Coastal States, 617 F.2d at

866 (deliberative documents 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”); Elec. Frontier Found., 739 F.3d at 8 (“[T]he deliberative

process privilege does cover legal memoranda that concern the advisability of a particular policy,

14
but do not authoritatively state or determine the agency’s policy.” (emphasis in original));

Citizens for Responsibility & Ethics in Washington v. U.S. Dep’t of Justice, 949 F. Supp. 2d 225,

234, 236 (D.D.C. 2013) (emails among agency lawyers discussing how to respond to press

inquiry was deliberative) (collecting cases). “Virtually all of the courts that have thus far applied

Exemption 5 have recognized that it requires different treatment for materials reflecting

deliberative or policy-making processes on the one hand, and purely factual, investigative

matters on the other.” Mink, 410 U.S. at 89. Consequently, the privilege does not apply to “final

statements of agency policy or to statements that explain actions that an agency has taken. . . .

[I]t protects ‘predecisional communications’ reflecting an agency’s internal deliberations, but not

communications that explain a decision that has already been made.” Tax Analysts v. IRS, 294

F.3d 71, 80 (D.C. Cir. 2002) (citing Sears, 421 U.S. at 151–52) (internal citations omitted). See

also Elec. Frontier Found., 739 F.3d at 10 (OLC opinion for FBI was deliberative because it did

not establish “working law” of the FBI). Thus, even records created in response to internal

requests for “advice” from agency lawyers may not be properly withheld under the deliberative

process privilege when the records merely reflect statements of extant agency policy. See Tax

Analysts, 117 F.3d at 617 (“FSAs [Field Service Advice memoranda] are themselves statements

of an agency’s legal position. . . .[and] do not reflect the ‘give-and-take’ that characterizes

deliberative materials.”); Schlefer, 702 F.2d at 235, 244 (“summary-indexes of significant

written opinions” prepared by the Maritime Administration’s Chief Counsel are not deliberative

because they were statements of agency policy not advisory opinions).

Finally, courts inquire as to whether the document was responsive to a request,

particularly a request from a senior official with decision-making authority to a subordinate in an

advisory position. See Murphy, 613 F.2d at 1154 (finding “classic case of the deliberative

15
process at work” where Assistant Secretary with decision-making power “sought advice from the

General Counsel of his department on the legal questions” raised by impending decision); Ctr.

for Nat. Sec. Studies v. I.N.S., No. 87-2068(RCL), 1990 WL 236133, at *4–5 (D.D.C. Dec. 19,

1990) (finding that challenged documents were predecisional in part because they were drafted

by a committee that was asked to produce the documents “to the Attorney General and the White

House”).

Set against these four factors, the Court now turns to analysis of the application of the

deliberative process privilege to the two challenged documents.

B. THE CHALLENGED DOCUMENTS ARE PREDECISIONAL AND
DELIBERATIVE

The plaintiff challenges the withholding of the two documents under the deliberative

process privilege on grounds, first, that they could not have formed part of the deliberative

process because of their timing; and, second, that DHS has presented insufficient information to

evaluate whether they are either deliberative or predecisional. Each of these challenges is

addressed seriatim below.

1. Timing of Challenged Documents

The two challenged documents are dated June 14, 2012, the day before the Secretary

made the public announcement of her final decision on June 15, 2012. See Sandweg Decl. ¶ 11.

DHS contends that this timing establishes that the documents were predecisional. See id. ¶¶ 11–

12; Defs.’ Opp’n Pl.’s Summ. J. Mot. & Reply Supp. Defs.’ Mot. (“Defs.’ Reply”) at 5, ECF No.

19. The plaintiff disputes this, claiming that submission of the challenged documents so close in

time to the public announcement of the DACA program cuts against finding that the documents

are predecisional. See Pl.’s Mem. at 10–11. The Court disagrees with the plaintiff.

16
The plaintiff relies on two sources of evidence to support its assertion that the challenged

documents are not predecisional. First, the plaintiff points to Documents 8 and 10 on the

Updated Vaughn Index that are described, respectively, as a draft press release regarding the

DACA, dated June 14, 2012, and a draft media communications strategy, dated June 12, 2012.

Updated Vaughn Index at 4, 5–6. The plaintiff does not challenge the withholding of documents

8 and 10 but notes that these documents are dated on or before June 14, 2012, the dates of the

two challenged documents. Pl.’s Mem. at 10–11. The plaintiff reasons that “it is illogical that a

media strategy be developed prior to any final decision on a new program,” Pl.’s Mem. at 11,

and that by the dates of the draft communications strategy on June 12, 2012 or draft press release

on June 14, 2012, DHS must, therefore, have made a final decision. Id. Based on this reasoning,

the plaintiff contends that the challenged documents “were clearly created after Secretary

Napolitano made a decision to exercise prosecutorial discretion with respect to DACA” and must

be “no more than an explanation of the new program.” Id. (emphasis in original); see also

Updated Vaughn Index at 3–6. As such, according to the plaintiff, the challenged documents are

post-decisional and not exempt under the deliberative process privilege. Pl.’s Mem. at 9.

The fact that the challenged documents were dated a day before the DHS Secretary

publicly announced the DACA program on June 15, 2012, does not automatically render them

post-decisional. See Fox News Network, LLC v. U.S. Dep’t of The Treasury, 739 F. Supp. 2d

515, 558 (S.D.N.Y. 2010) (noting that portions of email thread reflecting “Treasury legal’s

suggestion to Treasury decisionmakers regarding their final sign-off” “the day prior to its final

release” was “both deliberative and predecisional” and, thus, was properly redacted under

Exemption 5). On the contrary, this chronology shows that the documents were “generated

before the adoption of an agency policy.” Judicial Watch Inc., 449 F.3d at 151 (quoting Coastal

17
States, 617 F.2d at 866). The drafting of the challenged documents in the weeks leading to their

issuance on June 14, 2012 was concurrent with discussions on legal and policy considerations of

the program. Sandweg Decl. ¶ 11. Moreover, DHS has confirmed that the documents formed

part of a discussion weeks before they were issued and “were being considered” up to the June

15, 2012 announcement. Id. DHS has explained that the concurrent development of a media and

communications strategy and the legal analysis of the DACA program were a part of the

agency’s deliberative process. Id. ¶ 12. Indeed, the fact that the media and communications

strategy are both described as draft documents on the Updated Vaughn Index confirms, rather

than undercuts, the agency declarant’s assertion that “[s]ubstantive legal and policy aspects of

the DACA decision were under review at the time the communications plan was developed.” Id.

Second, the plaintiff points to internal DHS email exchanges leading up to June 15, 2012.

Pl.’s Reply Supp. Cross-Mot. Partial Summ. J. (“Pl.’s Reply”) at 3. According to the plaintiff,

these emails contain “undisputable evidence” “clearly show[ing] that a decision was made prior

to June 14, 2012.” Id. Contrary to the plaintiff’s characterization of “undisputable evidence,”

review of these emails indicate that the DACA policy was evolving up until the very date of the

announcement. See Decl. of Matthew S. Kownacki (“Kownacki Decl.”) Exs. A–B, ECF No. 20-

1. For example, emails generated the day before the announcement and the same day the

challenged documents were delivered to the Secretary on June 14, 2012, show that edits were

still underway on the new policy. See Kownacki Decl. Ex. B at 48 (email dated June 14, 2012,

at 1:27 PM noting White House counsel’s edits to a directive and asking for a discussion of the

changes); id. at 87 (email dated June 14, 2012, at 5:26 PM discussing the “most recent criteria”);

id. at 108 (email dated June 12, 2012, 1:41 PM proposing “a road map of what needs to be done

and the documents that we need to prepare, as well as to clarify the policy decisions that we will

18
need to discuss further”); see also Kownacki Decl. Ex. A at 27–28 (email thread dated June 13,

2012, at 11:44 AM with the subject line “Re: Draft Release,” discussing adding edits “on the

back end,” and mentioning that it “[s]till needs some work”).

The emails do not contain “undisputable evidence” contradicting DHS’ claim that the

final decision was made on June 15, 2012, but instead reflect the deliberative process as

described by DHS, namely, that the final policy decision and communications and media

strategies were developed concurrently and the policy was being edited up until June 15, 2012.

See Sandweg Decl. ¶¶ 11–12.

Thus, the timing of the submission to the Secretary of the two challenged documents

before the Secretary’s final announcement, together with the information supplied by DHS

regarding the process of finalizing the DACA program, adequately shows that the records were

predecisional and “part of a clear ‘process’ leading to a final decision on the issue.” Coastal

States, 617 F.2d at 868.

2. Sufficiency of DHS’ Information To Determine if Challenged Documents Are
Deliberative

The plaintiff claims that DHS has not included enough information in the original and

Updated Vaughn Indices describing the documents to warrant a determination that the documents

are deliberative because the agency makes “barren assertions” that the documents were part of

the deliberative process and “quot[es] the statutory language of the exemption.” Pl.’s Mem. at 9

–10 (citations omitted). In response, DHS submitted with its opposition a declaration by DHS’

Acting General Counsel supplementing the information about Documents 6 and 7. See generally

Sandweg Decl. Having already determined, first, that the timing of the challenged documents

with respect to the final decision indicates that the documents are predecisional, the Court next

considers the remaining three factors outlined in Section III.A., supra, to determine whether

19
DHS has met its burden of showing that the challenged documents “were created as part of the

decision-making process, and [] helped to inform and guide the Secretary in arriving at the final

decision.” Id. ¶ 12.

DHS has shown that the second factor, the relationship between the originating author

and the recipient of the document, supports a finding that the documents were deliberative. The

Updated Vaughn Index and DHS’ declarations identify the author and recipient of the

documents: Document 6 was drafted by DHS General Counsel Ivan Fong, and Document 7 was

drafted by DHS’ General Counsel’s Office at the request of the DHS Secretary, and both

documents are directed to the DHS Secretary. See Updated Vaughn Index at 3–4; Sandweg

Decl. ¶ 8. The General Counsel’s Office and the DHS General Counsel are subordinate to the

Secretary, who had the final authority to issue the DACA program. See Schlefer, 702 F.2d at

238 (noting flow of agency record “from ‘subordinate’ to ‘superior’ on an agency ladder” “more

‘deliberative’ in character”) (citing Sears, 421 U.S. at 155). This “flow of the documents [] from

subordinate to superior,” is strong evidence that these documents were part of a deliberative

process and were considered by those who had the authority to make a final decision. See Arthur

Andersen & Co., 679 F.2d at 259. Cf. Muttitt v. U.S. Dep’t of State, 926 F. Supp. 2d 284, 306–07

(D.D.C. 2013) (finding that defendant did not include requisite detail to show that documents

were deliberative where agency failed to identify the official or agency engaging in a series of

email exchanges, the topic, or the date of the exchanges”).

Moreover, the fact that the authors of these documents were lawyers whose role is to

provide legal advice also confirms that these records were deliberative. Brinton, 636 F.2d at

602. DHS has also shown that the documents were intended as legal advice, Sandweg Decl. ¶¶

8, 11, 13, and “[t]here can be no doubt that such legal advice, given in the form of intra-agency

20
memoranda prior to any agency decision on the issues involved, fits exactly within the

deliberative process rationale for Exemption 5.” Elec. Frontier Found., 739 F.3d at 9 (citing

Brinton, 636 F.2d at 604); see also Vaughn, 523 F.2d at 1143–44 (observing that a deliberative

document is “a direct part of the deliberative process” and makes “recommendations or

expresses opinions on legal or policy matters”). DHS has demonstrated that the documents

helped “inform and guide the Secretary in arriving at the final decision . . . on June 15, 2012,”

Sandweg Decl. ¶ 12, and that the issues were considered “by senior Department officials up

until” the Secretary’s announcement on June 15, 2012. Id. ¶¶ 11–12. This confirms DHS’ claim

that the documents were part of the deliberative process.

The third factor regarding the nature of the discussion within the challenged documents

also supports a finding that they are deliberative. As noted, the challenged documents contain

legal advice, which is typically considered part of a deliberative process. See Elec. Frontier

Found., 739 F.3d at 8 (noting that “the deliberative process privilege does cover legal

memoranda that concern the advisability of a particular policy” (emphasis in original)). DHS

further describes the contents of the two challenged documents as discussing legal issues and

legal authorities as well as “options to reduce legal risk.” See Sandweg. Decl. ¶ 7. The contents

of the two challenged documents were “part of a discussion about potential approaches to the

proposed deferred action policy and legal considerations,” and “were created as part of the

decision-making process.” Sandweg Decl. ¶¶ 11–12. Such legal advice is highly indicative that

the records contributed to the Secretary’s decisionmaking. Thus, consideration of this factor also

shows that these documents were part of a deliberative process.

Finally, the defendants have shown that the challenged documents were created in

response to the Secretary’s request for legal advice regarding her DACA decision. See Sandweg

21
Decl. ¶ 8. Since the Secretary sought out legal advice to inform her final policy decision, this

further confirms that this decision was intended to form part of her decisionmaking process. See

Murphy, 613 F.2d at 1154.

The cases relied upon by the plaintiff to support its contention that DHS’ description of

the documents is insufficient are inapposite. Pl.’s Mem. at 9–10, 12. Founding Church of

Scientology of Wash., D.C., Inc., v. Nat’l Sec. Agency, 610 F.2d 824 (D.C. Cir. 1979), is

distinguishable not only because exemption 3, not 5, was at issue, but also because the affidavit

in that case summarily stated that disclosure would “reveal certain functions and activities . . .

which are protected from mandatory disclosure” and which “would jeopardize national security

functions.” Id. at 831. The conclusory statement and lack of specificity in the agency affidavit in

Founding Church are distinguishable from the factual assertions and detail produced in DHS’

declaration here. See Sandweg Decl. ¶¶ 7–8, 11–12. As noted, the Sandweg Declaration details

the author and recipient of the documents, the nature of the discussions within the document, and

how the document formed part of the agency’s process in the weeks leading up to the

announcement of the final decision on June 15, 2012.

The plaintiff also relies on Army Times Pub. Co. v. U.S. Dep’t of Air Force, 998 F.2d

1067, 1070 (D.C. Cir. 1993), as support for its view that the agency declarations are insufficient,

Pl.’s Mem. at 10, but that case is also distinguishable. The plaintiff claims that in Army Times

Pub. Co., the Circuit found it insufficient for an affidavit to merely “parrot[] the case law.” Id. at

1070; see also Pl.’s Mem. at 10. The Circuit, however, did not decide that the affidavit was

insufficient because it restated the legal standard. Id. at 1071–72. Rather, in that case, the

agency claimed that documents related to internal poll results had to be withheld to avoid

harming the Air Force’s deliberative process even though the agency had already disclosed

22
portions of the documents without ill result. Id. at 1068, 1070–71. The affidavit was thus

insufficient because the agency’s action undercut its own justifications for withholding. Id. No

such circumstances are present here.

Finally, the plaintiff further contends that the Sandweg declaration “simply cannot satisfy

DHS’ burden under FOIA” because it is “self-serving.” See Pl.’s Reply at 2. To the contrary, in

FOIA cases, agency declarations or affidavits are viewed with “a presumption of good faith,

which will withstand purely speculative claims about the existence and discoverability of other

documents.” See Ground Saucer Watch v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (dismissing

plaintiff’s barren assertions of bad faith in the agency’s affidavits regarding its search for

records).

In sum, DHS has sufficiently demonstrated that the two challenged documents were

predecisional and part of the deliberative process, and therefore properly withheld from

disclosure under Exemption 5.6 With this finding, the Court need not decide whether the

documents were also properly withheld under the attorney-client privilege. See Elec. Frontier

Found., 739 F.3d at 4 (court did not discuss other reasons for withholding after concluding that

deliberative process privilege applied to withheld document); Brinton, 636 F.2d at 606 (“Further

development of the record . . . [to] show that the attorney-client privilege applies” “is not now

necessary” because the deliberative process privilege was applicable); Darui v. U.S. Dep’t of

6
The plaintiff requests, in the alternative, that the Court conduct an in camera review of the documents before ruling
on the applicability of any exemptions. See Pl.’s Mem. at 13. In camera review of withheld documents is “generally
disfavored,” see PHE, Inc. v. U.S. Dep’t of Justice, 983 F.2d 248, 253 (D.C. Cir. 1993), and should not be “a
substitute for the government’s obligation to justify its withholding in publicly available and debatable documents.”
Id; see also Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 955 F. Supp. 2d 4, 13 (D.D.C.
2013) (same). Since DHS’ declarations and Updated Vaughn Index are sufficiently clear to show that challenged
documents 6 and 7 were properly withheld under the deliberative process privilege, such a review is unnecessary.
See Brinton, 636 F.2d at 606 (“[D]istrict court was entirely correct in granting summary judgment without
conducting an in camera inspection of the documents” where “Department affidavits made a detailed showing of the
applicability of the deliberative process ground of Exemption 5 . . . [and] there is no contradictory evidence or
evidence of Department bad faith”).

23
State, 798 F. Supp. 2d 32, 39 (D.D.C. 2011) (“[T]he Court need not reach” applicability of

alternative exemptions once it has concluded that document is properly withheld under one

exemption).

C. Segregability

The FOIA requires that “[a]ny reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of the portions which are exempt.”

5 U.S.C. § 552(b). Even when a plaintiff does not challenge the segregability efforts of an

agency, the Court has “an affirmative duty to consider the segregability issue sua sponte.”

Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999);

see also Juarez v. U.S. Dep’t of Justice, 518 F.3d 54, 60 (D.C. Cir. 2008) (“Under this Circuit’s

law, the district court’s failure to address segregability in its memorandum opinion is reversible

error.”). The D.C. Circuit has acknowledged that establishing the non-segregability of non-

exempt material “presents problems for the agency since ... segregability depends entirely on

what information is in a document and how it is presented.” Mead Data, 566 F.2d at 261.

Therefore, although “agencies should not be forced to provide such a detailed justification that

would itself compromise the secret nature of potentially exempt information,” agencies “must be

required to provide the reasons behind their conclusions in order that they may be challenged by

FOIA plaintiffs and reviewed by the courts.” Id.

To this end, the Circuit has said that “[i]n addition to a statement of its reasons, an agency

should also describe what proportion of the information in a document is non-exempt and how

that material is dispersed throughout the document.” Id. Under Mead Data, if a small

proportion of the information is non-exempt, the agency’s explanatory burden is less, and if a

larger proportion of the information is non-exempt, “the courts should require a high standard of

24
proof for an agency claim that the burden of separation justifies nondisclosure or that disclosure

of the non-exempt material would indirectly reveal the exempt information.” Id. Since Mead

Data, the Circuit has relaxed this standard, holding that “[a]gencies are entitled to a presumption

that they complied with the obligation to disclose reasonably segregable material,” which must

be overcome by some “quantum of evidence” by the requester. Sussman v. U.S. Marshals Serv.,

494 F.3d 1106, 1117 (D.C. Cir. 2007). Indeed, more recent decisions from the D.C. Circuit have

held that an agency may satisfy its segregability obligations by (1) providing a Vaughn index that

adequately describes each withheld document and the exemption under which it was withheld;

and (2) submitting a declaration attesting that the agency released all segregable material. See,

e.g., Loving, 550 F.3d at 41 (stating that “the description of the document set forth in the Vaughn

index and the agency’s declaration that it released all segregable material” are “sufficient for [the

segregability] determination”); Johnson v. Exec. Office for U.S. Att’ys, 310 F.3d 771, 776 (D.C.

Cir. 2002) (upholding agency’s segregation efforts based on “comprehensive Vaughn index” and

“the affidavits of” agency officials).

In the instant case, the defendants have shown that they “conducted a document-by-

document review, inspecting each document for any non-exempt ‘reasonably segregable’

information” and that DHS “released any such reasonable [sic] segregable information” and

withheld certain documents entirely if “DHS determined that any factual information contained

in those records was not reasonably segregable because the selection of the facts was an integral

part of the legal advice and analysis.” See Holzer Decl. ¶ 36; see also Defs.’ Mem. at 19–20.

The Updated Vaughn Index, in conjunction with the agency declarations, provide sufficient

detail of the contents of these documents and the steps undertaken by DHS to comply with its

segregation obligations, for the Court to conclude that the defendants examined Documents 6

25
and 7 and disclosed any material that was reasonably segregable. See Sussman, 494 F.3d at

1117; Muttitt, 926 F. Supp. 2d at 302 (the defendants may satisfy their obligation by providing

an adequate description of the withheld documents in the Vaughn index and “submitting a

declaration attesting that the agency released all segregable material”) (citing Loving, 550 F.3d at

41).

The plaintiff does not address segregability in its briefs and, thus, fails to present “some

‘quantum of evidence’” to suggest that the defendants did not comply with their obligation. See

Sussman, 494 F.3d at 1117. Accordingly, the Court finds that DHS has satisfied its burden of

demonstrating that Documents 6 and 7 were examined and withheld only after considering

whether they could disclose any “reasonably segregable portion[s]” of the documents pursuant to

their obligation under 5 U.S.C. § 552(b).

IV. CONCLUSION

For the foregoing reasons, the Court concludes that DHS has sufficiently demonstrated

that the two challenged documents are subject to the deliberative process privilege under

Exemption 5 of FOIA and, thus, are exempt from disclosure. Accordingly, the defendants’

motion for summary judgment is GRANTED, and the plaintiff’s cross-motion for partial

summary judgment is DENIED. An appropriate Order accompanies this memorandum opinion.

Digitally signed by Hon. Beryl A.
Date: February 28, 2014 Howell
DN: cn=Hon. Beryl A. Howell,
o=District of Columbia, ou=U.S.
District Court for the,
email=Howell_Chambers@dcd.usc
ourts.gov, c=US

__________________
Date: 2014.02.28 11:18:29 -05'00'

BERYL A. HOWELL
United States District Judge

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2659435. Public record. Not legal advice.