Campaign Legal Center v. DOJ

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2021 Decided May 17, 2022

No. 20-5233

CAMPAIGN LEGAL CENTER,

APPELLEE

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-01771)

No. 20-5234

CAMPAIGN LEGAL CENTER,

APPELLEE

v.

UNITED STATES DEPARTMENT OF JUSTICE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-01187)

2

Gerard Sinzdak, Attorney, U.S. Department of Justice,

argued the cause for appellant. With him on the briefs were

Brian M. Boynton, Acting Assistant Attorney General at the

time the briefs were filed, and Mark B. Stern, Attorney.

Elizabeth E. Olien argued the cause for appellee. On the

brief were Adam Miller and Nadav Ariel.

Before: MILLETT, KATSAS, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: On December 12, 2017, Arthur

Gary, General Counsel of the Justice Management Division at

the Department of Justice, sent a letter to the Census Bureau

requesting the addition of a citizenship question to the 2020

Census. Four months later, then-Secretary of Commerce

Wilbur Ross relied on the Gary Letter to direct the Census

Bureau to include a citizenship question on the Census

questionnaire.

Shortly after the Department of Justice sent the Gary

Letter, the Campaign Legal Center filed a Freedom of

Information Act (“FOIA”) request with the Justice Department

seeking documents that would explain how and why the agency

came to request the citizenship question. The Department

withheld more than 100 pages of responsive documents under

FOIA Exemptions 5 and 6.

As relevant here, the district court held that some of the

Justice Department’s withholdings based on the deliberative

process privilege were improper, and ordered the Department

to produce those documents. The court found that responsive

drafts of the Gary Letter and associated emails could not be

withheld because they were completed after the Attorney

3

General had already decided to request the citizenship

question.

We reverse in part and remand. The process of drafting

the Gary Letter to request the addition of a citizenship question

in a way that protected the Department’s litigation and policy

interests involved the exercise of policymaking discretion, and

so the letter’s content itself was a relevant final decision for

purposes of FOIA’s deliberative process privilege. For that

reason, we hold that the Justice Department properly withheld

non-final drafts of the letter, and that most of the Department’s

redactions of associated emails were lawful. But because the

record fails to establish whether several redacted emails were

predecisional and deliberative, we remand for the district court

to reexamine those documents.

I

A

Congress enacted the Freedom of Information Act to

increase governmental transparency and to “protect[] the basic

right of the public to be informed about what their government

is up to.” Hall & Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir.

2020) (internal quotation marks and citation omitted).

FOIA requires covered federal agencies to provide

documents upon request by a member of the public unless the

records fall into an enumerated exemption. See 5 U.S.C.

§ 552(b)(1)–(9). Those “limited exemptions do not obscure the

basic policy that disclosure, not secrecy, is the dominant

objective of” FOIA. Department of the Air Force v. Rose, 425

U.S. 352, 361 (1976). As a result, even for exempt documents,

agencies must disclose “‘any reasonably segregable portion of

a record,’ the ‘amount of information deleted, and the

exemption under which the deletion is made.’” Hall & Assocs.,

4

956 F.3d at 624 (alteration omitted) (quoting 5 U.S.C.

§ 552(b)). In addition, under the FOIA Improvement Act of

2016, an agency may only withhold information under a FOIA

exemption if it “reasonably foresees that disclosure would

harm an interest protected by an exemption[,]” or if “disclosure

is prohibited by law[.]” Pub. L. No. 114-185, § 2, 130 Stat.

538, 539 (codified at 5 U.S.C. § 552(a)(8)(A)(i)).

This case concerns Exemption 5, which excludes from

FOIA’s disclosure obligation “inter-agency or intra-agency

memorandums or letters that 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 the privileges available to

Government agencies in civil litigation.” United States Fish &

Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021).

Among those privileges is the deliberative process privilege.

Id. That privilege protects “documents reflecting advisory

opinions, recommendations and deliberations comprising part

of a process by which governmental decisions and policies are

formulated.” Reporters Comm. for Freedom of the Press v.

FBI, 3 F.4th 350, 357 (D.C. Cir. 2021) (quoting NLRB v. Sears,

1

Roebuck & Co., 421 U.S. 132, 150 (1975)).

1

The deliberative process privilege only shields documents

from FOIA disclosure for 25 years after they are created. See 5

U.S.C. § 552(b)(5).

5

B

In May 2017, Secretary of Commerce Wilbur Ross asked

his Director of Policy, Earl Comstock, why the Department had

not made progress in adding a citizenship question to the

Census. See J.A. 184. Comstock reassured the Secretary that

“we will get that [question] in place.” J.A. 184. Comstock

explained that Commerce needed the Justice Department to

request the addition of the question, and added that “we have

the court cases to illustrate that DoJ has a legitimate need for

the question to be included.” J.A. 184.

As of September 2017, however, the Justice Department

still had not requested the addition of a citizenship question to

the Census. See Department of Commerce v. New York, 139 S.

Ct. 2551, 2575 (2019); J.A. 188. Comstock then asked his

agency’s legal staff whether Commerce could add the

citizenship question “without receiving a request from another

agency.” Department of Commerce, 139 S. Ct. at 2575.

Ultimately, though, Commerce decided that the best

course of action was for the Justice Department’s Civil Rights

Division to make the request on the ground that improved

citizenship data would help with enforcement of the Voting

Rights Act. Department of Commerce, 139 S. Ct. at 2575.

Secretary Ross then personally reached out to Attorney General

Jeff Sessions about requesting the citizenship question. On

September 17th, while scheduling a call between the cabinet

members, a staffer in the Office of the Attorney General wrote

to a counterpart at the Department of Commerce: “[I]t sounds

like we can do whatever you all need us to * * *. The AG is

eager to assist.” J.A. 190; see also Department of Commerce,

139 S. Ct. at 2575 (“[I]t was not until * * * Secretary [Ross]

contacted the Attorney General directly that DOJ’s Civil Rights

Division expressed interest in acquiring census-based

6

citizenship data to better enforce the VRA.”). John Gore, the

Acting Assistant Attorney General for the Civil Rights

Division, was tasked with writing the letter, and Arthur Gary,

General Counsel of the Justice Management Division, was to

be the letter’s signatory.

In the Fall of 2017, an outside advisor to the Department

of Commerce gave Gore a draft letter requesting the addition

of a citizenship question to the Census. Gore also received a

memorandum from an attorney in Commerce’s Office of

General Counsel that had “look[ed] into the legal issues

[regarding the citizenship question] and how Commerce could

add the question to the Census itself.” J.A. 188.

By early November, Gore had completed his own first

draft of the letter and circulated it for comments within the

Justice Department’s Civil Rights Division. The Voting

Section Chief provided feedback, as did a political appointee

in Gore’s office. For the rest of the month, Gore and Gary

continued to discuss the letter and to exchange drafts. On

November 27th, Gore sent a draft to Justice Department

leadership. Over the following two weeks, Rachael Tucker of

the Office of the Attorney General and Robert Troester of the

Office of the Deputy Attorney General reviewed and

commented on the draft. Two other advisors to the Attorney

General also participated in the drafting process.

On December 8th, with the final feedback from Justice

Department leadership incorporated, Gore told Gary that the

letter was ready to send to the Census Bureau. On the afternoon

of December 12th, Gary’s secretary mailed the letter to Ron

Jarmin, Acting Director of the Census Bureau. See J.A. 631–

633 (final Gary Letter).

In the final Gary Letter, the Justice Department requested

that the Census Bureau add “a question regarding citizenship”

7

to the 2020 Census questionnaire. J.A. 631. The Department

reasoned that the resulting “data is critical to the Department’s

enforcement of Section 2 of the Voting Rights Act” because

the Department “needs a reliable calculation of the citizen

voting-age population in localities where voting rights

violations are alleged or suspected.” J.A. 631.

The letter also gave several reasons why the Department

wanted the Bureau to ask the citizenship question on the main

Census questionnaire rather than on the American Community

Survey, a non-comprehensive population survey separately

conducted by the Census Bureau. At bottom, the letter claimed

that data from the Census would be more accurate than

Community Survey data and would be better suited for

comparison with the total population estimates that

jurisdictions use in redistricting.

In March 2018, Secretary Ross issued a memorandum

directing the Census Bureau to place a citizenship question on

the Census questionnaire, relying in large part on the Gary

Letter as the basis for his decision.

In June 2019, the Supreme Court held that Secretary

Ross’s rationale for adding the citizenship question to the

Census “seems to have been contrived[,]” and the decision to

add the question was unreasoned. Department of Commerce,

139 S. Ct. at 2575–2576.

C

On February 1, 2018, the Campaign Legal Center

(“Center”) submitted a FOIA request to the Justice

Department. The Center sought “all records pertaining to

Arthur E. Gary’s December 12, 2017 request to the Census

Bureau to add a Citizenship question to the 2020 Census

Questionnaire.” J.A. 23. The Center requested responsive

8

documents from the Justice Management Division, the

Attorney General’s Office, and the Civil Rights Division.

On February 28th, the Civil Rights Division withheld all

responsive documents from disclosure under Exemption 5. A

month later, the Center sought administrative review of the

Division’s decision. After receiving no response from the

Division for two months, the Center filed suit against the

Justice Department to enforce its FOIA request. See 5 U.S.C.

§ 552(a)(6)(A)(ii), (C)(i).

When the Justice Management Division and the Office of

the Attorney General likewise failed to respond to the FOIA

request in a timely manner, the Center sued the Justice

Department a second time to enforce its FOIA request directed

at those two components.

While the cases were pending, all three components of the

Justice Department produced some documents to the Center

while withholding others in whole or in part. As of the time of

the district court decisions, the Civil Rights Division had found

272 responsive pages and released 184 in whole or in part. The

Office of the Attorney General had found 289 responsive pages

and had provided 198 of them in whole or in part. And the

Justice Management Division had found 131 pages and had

2

released 116 pages, with some redactions. The Justice

2

These numbers include documents referred to the three

components by other parts of the Justice Department for FOIA

processing.

9

Department argued that its withholdings were justified under

3

FOIA Exemptions 5 and 6, 5 U.S.C. § 552(b)(5), (6).

The parties cross-moved for summary judgment in both

cases. As relevant here, their dispute concerned the validity of

the Justice Department’s withholding of drafts of the Gary

Letter and some or all of approximately twenty related emails

under Exemption 5’s deliberative process privilege. In both

cases, the district court granted the Center summary judgment

as to those documents and ordered the three Justice Department

components to produce them to the Center. Campaign Legal

Center v. Department of Justice, 464 F. Supp. 3d 397, 408–409

(D.D.C. 2020) (Campaign Legal Center I); Campaign Legal

Center v. Department of Justice, No. 18-cv-01771, 2020 WL

2849909, at *14 (D.D.C. June 1, 2020) (Campaign Legal

Center II).

The court found that Attorney General Sessions had made

his final decision to send the request for a citizenship question

to the Census Bureau before the Gary Letter was even drafted.

See Campaign Legal Center I, 464 F. Supp. 3d at 407–408;

Campaign Legal Center II, 2020 WL 2849909, at *7–8; see

also Department of Commerce, 139 S. Ct. at 2575. The court

reasoned that, because the letter “did not involve discretion

about an agency position or about the primary reasons for the

agency position[,]” Campaign Legal Center I, 464 F. Supp. 3d

at 407, its composition did not reflect the “exercis[e of] policy-

implicating judgment” required to trigger the deliberative

process privilege, id. (internal quotation marks omitted)

3

Exemption 6 protects “personnel and medical files and similar

files the disclosure of which would constitute a clearly unwarranted

invasion of personal privacy[.]” 5 U.S.C. § 552(b)(6). The Center

does not challenge here any of the Justice Department’s Exemption

6 withholdings.

10

(quoting Petroleum Info. Corp. v. Department of the Interior,

976 F.2d 1429, 1435 (D.C. Cir. 1992)); see Campaign Legal

Center II, 2020 WL 2849909, at *7 (same). For that reason,

the district court ruled that the process of writing the Gary

Letter was not predecisional. Because documents must be both

predecisional and deliberative to fall under the deliberative

process privilege, the court held that the Gary Letter documents

were not exempt from disclosure.

The district court then ordered the Justice Department

components to produce the drafts of the Gary Letter that the

agency had withheld in full, and to remove Exemption 5

redactions from emails written by various Justice Department

4

employees while drafting and editing the Gary Letter.

The Justice Department timely appealed the district court’s

orders to release drafts of the Gary Letter and related emails.

II

The district court had jurisdiction under 5 U.S.C.

§ 552(a)(4)(B) and 28 U.S.C. § 1331.

We have jurisdiction under 28 U.S.C. § 1292(a)(1).

Though the district court’s orders were not final, see 28 U.S.C.

§ 1291, because they did not “fully resolve all the issues before

that court,” they are appealable under 28 U.S.C. § 1292(a)(1)

as injunctions ordering disclosure. Judicial Watch, Inc. v.

4

To the extent the Justice Department appeals the court’s order

to release the final Gary Letter, any dispute over that part of the order

is moot because the Department has already released it. See Bayala

v. Department of Homeland Security, 827 F.3d 31, 34 (D.C. Cir.

2016); Declaration (Third) of Vanessa R. Brinkmann at 5 n.3,

Campaign Legal Center II, 2020 WL 2849909 (No. 18-cv-01771),

ECF No. 48-2; see also J.A. 829, 440.

11

Department of Energy, 412 F.3d 125, 128 (D.C. Cir. 2005); see

also Leopold v. CIA, 987 F.3d 163, 169 (D.C. Cir. 2021)

(“There is no doubt that orders requiring the disclosure of

documents [in a FOIA case] are appealable injunctions.”)

(internal quotation marks and citation omitted).

We review a district court’s grant of summary judgment in

FOIA cases de novo. Protect Democracy Project, Inc. v.

National Security Agency, 10 F.4th 879, 884 (D.C. Cir. 2021).

Summary judgment is only appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). In ruling on a FOIA summary judgment motion,

“courts may rely on non-conclusory agency affidavits

demonstrating the basis for withholding if they are not

contradicted by contrary evidence in the record or by evidence

of the agency’s bad faith.” Reporters Comm., 3 F.4th at 361.

III

The deliberative process privilege shields documents that

debate and discuss proposed agency decisions before they are

finalized. See Department of Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1, 8–9 (2001). The privilege

ensures “that subordinates within an agency will feel free to

provide the decisionmaker with their uninhibited opinions and

recommendations without fear of later being subject to public

ridicule or criticism[.]” Coastal States Gas Corp. v.

Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

The privilege also shields “policymakers from premature

disclosure of their proposals before they have been completed

or adopted[,]” promoting full and robust consideration of

agency options. Reporters Comm., 3 F.4th at 361. And it

protects the public from being misled by “documents

suggesting reasons and rationales for a course of action which

12

were not in fact the ultimate reasons for the agency’s action.”

Coastal States, 617 F.2d at 866.

Ultimately, the privilege is designed to improve

governmental decisionmaking by encouraging public servants

to speak candidly with one another and to fully flesh out the

reasons for and against potential agency actions before they are

taken. See Fish & Wildlife Serv., 141 S. Ct. at 785; see also

Sears, 421 U.S. at 151.

To qualify for the privilege a document must be both

predecisional and deliberative. Machado Amadis v.

Department of State, 971 F.3d 364, 370 (D.C. Cir. 2020).

Documents are predecisional if “they were generated

before the agency’s final decision on the matter[.]” Fish &

Wildlife Serv., 141 S. Ct. at 786. A paradigmatically

predecisional document is one prepared “to assist an agency

decisionmaker in arriving at [a] decision, rather than to support

a decision already made.” Petroleum Info. Corp., 976 F.2d at

1434 (internal quotation marks and citation omitted).

Documents qualify as deliberative if “they were prepared to

help the agency formulate its position.” Fish & Wildlife Serv.,

141 S. Ct. at 786.

While the “predecisional” prong turns centrally on

whether agency communications precede a final decision, the

“deliberative” prong focuses on whether the substance of the

documents “reflects the give-and-take of the consultative

process[.]” Reporters Comm., 3 F.4th at 362 (quoting Judicial

Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)).

To demonstrate that a document is deliberative, the

government must explain the role it played in administrative

decisionmaking—the “who, what, where, and how” of internal

governmental deliberations. Judicial Watch, Inc. v.

13

Department of Justice, 20 F.4th 49, 57 (D.C. Cir. 2021)

(internal quotation marks omitted). To meet that burden, the

government typically must show “the roles of the document

drafters and recipients[,]” the “nature of the withheld

content[,]” and the “stage within the broader deliberative

process in which the withheld material operates[.]” Id. at 56.

Finally, the government must explain “the way in which the

withheld material facilitated agency deliberation.” Id.

We hold that all of the withheld drafts of the Gary Letter,

and the bulk of the related emails, were both predecisional and

deliberative. The record on five of the redacted emails,

however, is too sparse for us to determine whether they fall

within the scope of the privilege. So as to those documents, we

remand to the district court for further consideration.

A

1

To show that the drafts of the Gary Letter and associated

emails qualify as predecisional, the Justice Department bears

the burden of demonstrating that they were created “during an

agency’s deliberations about a policy,” rather than simply

“embody[ing] or explain[ing] a policy that the agency adopts.”

Fish & Wildlife Serv., 141 S. Ct. at 783. Whether documents

precede a final, adopted decision must be analyzed “in the

context of the administrative process which generated them.”

Id. at 786 (quoting Sears, 421 U.S. at 138). The question is a

“functional rather than [a] formal inquiry.” Id. at 788. If, for

example, an agency hides “a functionally final decision in draft

form, the deliberative process privilege will not apply.” Id.

After all, “[w]hat matters * * * is not whether a document is

last in line, but whether it communicates a policy on which the

agency has settled.” Id. at 786.

14

The parties do not dispute, nor could they on this record,

that the documents at issue were created after the Attorney

General’s decision to request that the Census Bureau include a

citizenship question on the Census. So they were not

predecisional as to that policy judgment.

But that does not end our analysis. The policy judgments

involved in the formulation of the Gary Letter went beyond the

single, bottom-line decision to request a citizenship question.

As precedent from this court has recognized, the substantive

judgment calls made in the process of drafting and editing a

formal agency document that first communicates a policy

decision can themselves embody distinct policy

determinations, especially when the content of that

communication itself shapes and sharpens the underlying

policy judgment or will have direct consequences for ongoing

agency programs and policies. See Reporters Comm., 3 F.4th

at 362–364. More specifically, agency choices about what

rationales, justifications, and limitations to provide—and

which to leave out—in articulating an important agency

decision can involve difficult and substantive policy

determinations. Debate and discussion about such statements

precede—are predecisional to—the actual determination of

how best both to define the scope and contours of the new

policy, and to persuasively communicate its terms and rationale

to the public. That is especially the case when those decisions

involve “critical judgment calls aimed at advancing the

agency’s” distinct policy interests. Id. at 363; see also Russell

v. Department of the Air Force, 682 F.2d 1045, 1049 (D.C. Cir.

1982) (“The policies embodied in Exemption [5] are as

applicable to the * * * editorial review process as they are to

other agency deliberations that precede agency decisions.”).

In other words, even after an agency head has set the

direction of agency policy at the macro level, the subsequent

15

work needed to define, refine, debate, and flesh out the

boundaries of and justifications for that position can, upon a

proper showing, also qualify as predecisional. In Reporters

Committee, for example, we held that emails discussing a draft

letter from the Director of the FBI to the New York Times

defending a controversial agency policy were predecisional.

Reporters Comm., 3 F.4th at 362–364. We noted that the

emails were written “not so much to explain the agency’s

already-decided policy, but to figure out how to best promote

and ensure the continuation” of a policy facing “intense

congressional and public criticisms[.]” Id. at 363. Mounting

such a defense often involves “internal debates and

deliberations about whether and how best to endorse and to

advocate” for consequential policy decisions. Id. at 364.

Those are precisely the type of internal governmental

discussions the deliberative process privilege is designed to

protect. Cf. National Security Archive v. CIA, 752 F.3d 460,

465 (D.C. Cir. 2014) (Kavanaugh, J.) (editing decisions can

“involve[ the] policy-oriented judgment” that is the hallmark

of actions protected by the deliberative process privilege)

(formatting modified and citation omitted).

Similarly, in Dudman Communications Corp. v.

Department of the Air Force, this court held that a draft agency

history of Air Force actions in South Vietnam was

predecisional. 815 F.2d 1565, 1568–1569 (D.C. Cir. 1987).

Even though the Air Force had already “decided to publish a

history” on that subject before the draft was written, we found

that pre-publication “editorial judgments—for example,

decisions to insert or delete material or to change a draft’s focus

or emphasis”—were protected. Id. at 1566, 1569.

That makes sense. As even the Center agrees, see Oral

Arg. Tr. 29:16–30:6, after the Solicitor General of the United

States makes the final decision to appeal or to file a case in the

16

Supreme Court, the internal deliberations involved in drafting

and defining the precise content and reach of agency

arguments, as well as how most effectively to give voice to the

agency position in a brief, all involve the type of substantive

policy judgments that qualify as predecisional.

Likewise, even after an administrative law judge

determines how to rule on a case, the process of drafting a

decision will generally involve the iterative weighing of legal

and policy concerns that precede (and are predecisional to) the

ultimate agency work product. In that way, spelling out a

policy’s metes and bounds and its justifications may involve

additional policy judgments beyond the initial decision to

pursue an overarching goal.

Much the same happened here. The record demonstrates

that, in drafting the Gary Letter, the Justice Department was

not simply describing an already-made agency decision.

Instead, it was engaged in formulating and refining both the

actual content of and the public rationale for a new and

consequential governmental policy in a way that required

balancing the proposed justifications for a citizenship question

with other departmental policy and litigation interests. To that

point, the Acting Chief of the Civil Rights Division’s Freedom

of Information/Privacy Act Branch, Tink Cooper, attested that,

in the drafting and editing process, personnel within the Justice

Department sought “review and input,” requested additional

“relevant information,” and engaged in a “frank discussion of

vital enforcement interests[.]” Declaration of Tink Cooper

¶ 30, J.A. 456; see also id. ¶¶ 24–26, J.A. 454–455 (similar

statements regarding emails between Gore and Justice

Department leadership). Several of the emails from Justice

Department personnel “contain attorney discussion, opinions,

and analyses of the various draft versions[,]” evidencing that

17

agency staff were still making substantive and sensitive legal

judgments. J.A. 608 (Civil Rights Division Vaughn Index).

Critically, the record shows that the Justice Department

did not rotely adopt the draft letter provided to Acting Assistant

Attorney General Gore by an advisor to the Commerce

Department. The letter from the Commerce advisor is barely

more than a page in length and contains almost no analysis of

case law. J.A. 645–646; see also J.A. 651; Defendant’s Resp.

to Pl.’s Second Notice of Suppl. Authority, Campaign Legal

Center I, 464 F. Supp. 3d 397 (No. 18-cv-01187), ECF Nos. 28

& 28-1. That draft asserted that the American Community

Survey “is not viable and/or sufficient for purposes of

redistricting[,]” and that recent “Federal Court decisions will

require block level data that can only be secured by a

mandatory question in the 2020 [Census].” J.A. 645.

The Gary Letter, by contrast, runs over three pages, and

includes numerous citations and analyses of case law. The

language is also notably more nuanced and caveated, reflecting

the fact that careful institutional judgments were still being

made about the policy boundaries of the rationale for the

Justice Department’s request and its legal justification. For

example, the Gary Letter says only that the “census

questionnaire is the most appropriate vehicle for collecting”

citizen voting-age population data, not that it is required by

court decisions. J.A. 631 (emphasis added); compare J.A. 631,

with J.A. 645 (Commerce advisor letter stating that “recent

Court decisions * * * require[]” data that can “only be

provided” by the Census). Similarly, the Gary Letter says that

the American Community Survey data is not “ideal” for

redistricting purposes, rather than declaring it inviable. J.A.

632; compare J.A. 632, with J.A. 645 (Commerce advisor letter

18

stating that American Community Survey “data is not viable

5

and/or sufficient for purposes of redistricting”).

In short, a comparison of the letter given to the Department

by a Commerce advisor and the final Gary Letter supports the

Civil Rights Division’s explanation that, in drafting and editing

the letter, agency staff carefully considered how best to protect

“vital enforcement interests[.]” Cooper Decl. ¶ 30, J.A. 456.

For example, an unqualified rejection of the viability of

Community Survey data might have weakened the Justice

Department’s ability to use such data in already pending or

future litigation. That type of sensitive determination about

how to promote a new and potentially controversial policy

proposal while protecting ongoing agency interests mirrors the

kind of policy discussions this court recognized as

predecisional in Reporters Committee. See 3 F.4th at 363

(emails sent as “part of an internal dialogue about critical

judgment calls aimed at advancing the agency’s interests in the

midst of a vigorous public debate about [a policy’s propriety]”

were predecisional).

The Center suggests that this case is different because the

“Gary [L]etter * * * was simply a pretext” and was not

“describing an actual policy decision of the Department[.]”

Oral Arg. Tr. 31:11–13; see also Center Br. 8–9. But the

Center has not cited any case under FOIA that has recognized

an exception to the deliberative process privilege for pretextual

5

Compare also, e.g., J.A. 645 (Commerce advisor letter

asserting that “data on citizenship is specifically required to ensure

that the Latino community achieves full representation in

redistricting”), with J.A. 631–633 (Gary Letter making no such

claim); J.A. 633 (Gary Letter requesting that the Census Bureau

“maintain the citizenship question on the ACS”), with J.A. 645–646

(Commerce advisor letter making no such request).

19

documents, nor has it advanced a developed argument to that

6

effect.

To sum up, read “in the context of the administrative

process which generated them[,]” the drafts of the Gary Letter

and the bulk of associated communications are predecisional

because the decision to request a citizenship question itself

triggered a new and related series of substantive policy

judgments about how best to formulate and justify such a

request in the first instance, which reasons to provide and

which to omit, and what limitations to impose on the request.

Fish & Wildlife Serv., 141 S. Ct. at 786 (citation omitted). The

Justice Department did not conclude that decisionmaking

7

process until it produced the final draft of the Gary Letter.

6

The best the Center musters is a citation to In re Sealed Case,

stating that “[w]here the documents sought shed light on a false

justification for a policy, withholding should be denied ‘on the

grounds that shielding internal government deliberations in this

context does not serve the public’s interest in honest, effective

government.’” Center Br. 12 (secondary internal quotation marks

omitted) (quoting In re Sealed Case, 121 F.3d. 729, 738 (D.C. Cir.

1997)). That case, though, involved a privilege assertion in

litigation. And we have already held that the type of balancing

undertaken when the deliberative process privilege is asserted in

litigation “does not figure into privilege determinations under

FOIA[.]” Protect Democracy Project, 10 F.4th at 886.

7

The Center never raised before the district court or this court

the question of whether the Department’s declarations demonstrated

the type of reasonably foreseeable harm required by the FOIA

Improvement Act, 5 U.S.C. § 552(a)(8)(A)(i)(I). See Reporters

Comm., 3 F.4th at 369–372. So that question is not before us.

20

2

In addition to being predecisional, all of the Gary Letter

drafts, and most of the associated email communications, are

also deliberative. That is, they “reflect the give-and-take of the

consultative process” underlying the formulation of the Gary

Letter and its proposed policy justifications for the requested

citizenship question. Judicial Watch, Inc. v. Department of

Defense, 847 F.3d 735, 739 (D.C. Cir. 2017) (formatting

modified and citation omitted). Unlike discussions about

“already-made and in-place policy choices[,]” Reporters

Comm., 3 F.4th at 367, the Justice Department’s crafting of the

Gary Letter entailed exactly “the type of back-and-forth

exchange of ideas, constructive feedback, and internal debate

* * * that sits at the heart of the deliberative process

privilege[,]” id. at 364. The withheld documents here are

actively edited drafts of an unfinished, work-in-progress policy

letter, along with emails exchanging ideas about what that

statement should or should not say. Such “[p]roposed drafts of

a non-final agency decision that are still undergoing review,

debate, and editing” constitute “deliberative work in

progress[.]” Id.

As to most of the withheld documents, the Justice

Department has also met its burden to explain what role the

communications played in the deliberative process. See

Judicial Watch, 20 F.4th at 56–57. The Department identified

(i) who sent and read the files at issue by name and position

within the agency, (ii) what stage of the process they addressed,

with specific reference to the state of the draft, and (iii) what

the comments involved, such as language changes and other

recommendations about the best way to articulate the precise

content of and justifications for this new agency policy. See

J.A. 506, 545–550, 552–554, 558–562, 566–567, 594, 597–

598, 604–607.

21

The declarations and redacted emails also explain how

“the withheld material facilitated agency deliberation.”

Judicial Watch, 20 F.4th at 56. They show that these

documents contain close line edits and editorial suggestions by

named officials in the Department of Justice—most of them

senior—on a letter staking out the agency position on an issue

they considered sensitive, important, and potentially

controversial. See, e.g., J.A. 596 (Gore explaining in email to

Voting Section Chief Chris Herren that the draft Gary Letter is

“confidential and close hold”). And the documents contained

comments grounded in substantive legal analysis, see, e.g., J.A.

507 (Gary telling Gore that he is “get[ting] through the cases”

to comment on the draft letter), as well as edits by senior

management altering the draft, see J.A. 605–607.

In other words, the comments and exchanges helped

formulate a statement that advanced and protected a balance of

departmental interests. Unlike in cases where we have found

the agency explanation wanting, here—when we consider the

whole record—“there was little mystery as to the who, what,

where, and how of the deliberative process and the role played

by [most of] the withheld material.” Judicial Watch, 20 F.4th

at 57 (internal quotation marks omitted).

The Center’s only argument to the contrary is that the Gary

Letter documents cannot be deliberative because they are post-

decisional. See Plaintiff’s Cross-Mot. for Summ. J. at 17,

Campaign Legal Center II, 2020 WL 2849909 (No. 18-cv-

01771), ECF No. 24 (“Post-hoc documents providing

justifications for a pre-decided policy” do not show policy

discretion and therefore play no consultative role); Plaintiff’s

Cross-Mot. for Summ. J. at 20, Campaign Legal Center I, 464

F. Supp. 3d 397 (No. 18-cv-01187), ECF No. 15 (similar).

Because we hold that the formulation of the final Gary Letter

itself involved the type of predecisional discretionary

22

judgments, consultations, and policy calls that the deliberative

8

process privilege protects, this argument fails.

3

Finally, the Center argues that permitting the withholdings

here undermines the goals of the deliberative process privilege.

Center Br. 9–13. Not so. The privilege protects “internal

dialogue about critical judgment calls aimed at advancing the

agency’s interests[,]” particularly around issues that spark

“vigorous public debate[.]” Reporters Comm., 3 F.4th at 363.

Disclosing internal deliberations about controversial issues,

like those at issue here, can be especially likely to endanger

“candid discussion within the agency.” Access Reports v.

Department of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)

(internal quotation marks and citation omitted). In such

circumstances, the exemption plays an important role in

protecting government employees who may feel pressure to

“carefully toe the party line” just when critical debate is needed

most. Dudman, 815 F.2d at 1569.

B

While most of the documents were properly withheld, the

record leaves unsettled the propriety of the Justice

Department’s redaction of five emails. So we remand as to

those documents for the district court to reconsider consistent

8

The Center asks that we remand the question of whether the

documents were deliberative because the district court did not

address it. Center Br. 8 n.1. We decline to do so in this case as to

most of the records at issue because our review is de novo, the record

is fully developed, and the Center’s arguments about the deliberative

and predecisional prongs are identical. See Porup v. CIA, 997 F.3d

1224, 1238–1239 (D.C. Cir. 2021).

23

with this opinion. On remand, the government will of course

“bear[] the burden of establishing that a claimed exemption

applies.” Citizens for Resp. & Ethics in Wash. v. Department

of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014).

In particular, several of the emails appear to postdate the

letter-drafting process, meaning they would not be exempt on

the current record. On December 12, 2017, Gore and Rachael

Tucker, an official in Justice Department leadership,

exchanged four emails, seemingly about the Gary Letter. See

Defendant’s Mot. for Summ. J., Ex. I, at 103, Campaign Legal

Center II, 2020 WL 2849909 (No. 18-cv-01771), ECF No. 22-

7. All four emails were sent between 6:27 p.m. and 6:58 p.m.,

and all are redacted in full. Id. Yet the Justice Department

appears already to have mailed the final Gary Letter to the

Commerce Department that afternoon. See id. at 104. The

government nowhere explained how these emails are

predecisional given its argument that the relevant final decision

for the documents at issue here was the final Gary Letter, which

had already been sent out. See Oral Arg. Tr. 5:5–8 (Justice

Department attorney answering the question “[W]hat is the

relevant decision to which these documents are pre-

decisional?” with “the official version of the [Gary] Letter that

was sent on [sic] December 2017”); see also Gov. Br. 12.

Similarly, on December 12th, Justice Department official

Gene Hamilton emailed Tucker with the subject line “RE:

Letter[.]” J.A. 442. The Justice Department’s declarations and

supporting documents do not identify when on December 12th

Hamilton sent this email, nor do they specify that it was sent

before the Gary Letter was finalized.

Because there are still “genuine dispute[s] over * * *

question[s] of material fact” as to these emails, the Justice

Department has failed to provide the “indispensable predicate

24

for a grant of summary judgment” on the current record. Hall

& Assocs., 956 F.3d at 630.

IV

We reverse the district court’s judgment as to all drafts of

the Gary Letter and most of the associated emails. We remand

the withholding decision regarding the five emails identified

above for further consideration consistent with this opinion.

So ordered.