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Judicial Watch • 2011 jw-v-doj-opinion-08042011

2011 jw-v-doj-opinion-08042011

2011 jw-v-doj-opinion-08042011

Page 1: 2011 jw-v-doj-opinion-08042011

Category:Legal Document

Number of Pages:23

Date Created:August 4, 2011

Date Uploaded to the Library:July 30, 2013

Tags:responsibility, facts, privilege, Division, rights, summary, process, Civil, legal, public, information, Attorney, documents, justice, defendant, section, document, watch, plaintiff, records, DOJ, judicial, department, Supreme Court, states, united, court, EPA, IRS, ICE, CIA


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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT COLUMBIA   
JUDICIAL WATCH, INC., 
   Plaintiff,  Civil Action No. 10-851 (RBW) 
UNITED STATES DEPARTMENT  
JUSTICE, 
   Defendant. 
 
MEMORANDUM OPINION 
 The plaintiff, Judicial Watch, Inc., brings this action against the United States Department Justice (DOJ) pursuant the Freedom Information Act (FOIA), U.S.C.  552 (2006), demanding the release records concerning the DOJs decision dismiss civil claims that had been filed against the defendants United States New Black Panther Party for Self-Defense, No. 09-cv-0065 (E.D. Pa. 2009).  Complaint (Compl.)  18-19.  Currently before the Court are the parties cross-motions for summary judgment.  Upon consideration the parties written submissions and the entire record this case,1 for the reasons explained below, the plaintiffs motion will denied part and with prejudice, and denied part and without prejudice.  Furthermore, the DOJs motion will granted part and denied part and without prejudice.  The Court also considered the following written submissions reaching its decision:  (1) the Memorandum Law Support The Department Justices Motion For Summary Judgment (Def.s Mem.); (2) the Defendants Statement Material Facts Not Genuine Dispute (Def.s Facts); (3) the Defendants Reply And Opposition Plaintiffs Cross-Motion For Summary Judgment (Def.s Reply); (4) the Plaintiffs Memorandum Law Opposition Defendants Motion For Summary Judgment And Support Plaintiffs Cross-Motion For Summary Judgment (Pl.s Mem.); (5) the Plaintiffs Response Defendants Statement Material Facts Not Genuine Dispute And Plaintiffs Statement Material Facts Not Genuine Dispute Support Plaintiffs Cross-Motion For Summary Judgment; and (6) the Plaintiffs Reply Defendants Opposition Plaintiffs Cross-Motion For Summary Judgment (Pl.s Reply). BACKGROUND May 15, 2009, the DOJ filed Notice Voluntary Dismissal three defendants and Motion for Default Judgment fourth defendant United States New Black Panther Party for Self-Defense (the New Black Panther Party case), action filed the United States District Court for the Eastern District Pennsylvania the Civil Rights Division the DOJ pursuant Section 11(b) the Voting Rights Act, U.S.C.  1973i(b) (2006).  Def.s Mem.  The district court granted the governments motion, and enjoined one the defendants, Minister King Samir Shabazz, from displaying weapon within 100 feet any open voter polling location any election day Philadelphia, Pennsylvania, and from otherwise violating U.S.C.  1973i(b).  Id. letter dated May 29, 2009, the plaintiff this case, non-profit, educational foundation that purports to promote integrity, transparency, and accountability government, Compl.  submitted FOIA request the DOJ seeking four categories records related the New Black Panther Party case, Def.s Facts  particular, the plaintiff requested that the DOJ produce the following: Any and all records pertaining the lawsuit under the Voting Rights Act against the New Black Panther Party for Self Defense and three its members {Malik Zulu Shabazz, Minister King Samir Shabazz, Jerry Jackson} (records include, but are not limited to, memos, correspondence, affidavits, interviews, and records concerning default judgment, excluding court filings). Any and all records pertaining the decision end the civil complaint against the New Black Panther Party for Self Defense and three its members (records include, but are not limited to, memos, correspondence, affidavits, interviews, records concerning default judgment, excluding court filings). Any correspondence between the [DOJ] and the New Black Panther Party for Self Defense, include defendants [Malik Zulu 

Shabazz, Minister King Samir Shabazz, Jerry Jackson,] and/or any attorney(s) representing the defendants. Any third-party communications concerning the New Black Panther Party for Self Defense, include defendants [Malik Zulu Shabazz, Minister King Samir Shabazz, Jerry Jackson,] and/or any attorney(s) representing the defendants. 

 
Def.s Mem., Exhibit (Ex.) (Declaration Nelson Hermilla (Hermilla Decl.)), Ex. 1-3. letter dated July 15, 2010, the DOJ informed the plaintiff that there likely would delay processing the request because had received multiple FOIA requests concerning the same subject matter.  Def.s Mem.  Several months later, letter dated January 15, 2010, the DOJ further advised the plaintiff that facilitate its response, the DOJ had interpreted the scope the FOIA request limited records concerning the [DOJs] decision seek dismissal [the] defendants the New Black Panther Party case.  Id.  The plaintiff ultimately agreed with this interpretation.  Id.; Compl.    
 Searches for responsive material were conducted several offices within the DOJ, including the Civil Rights Division, the Office the Attorney General, the Office the Deputy Attorney General, the Office the Associate Attorney General, the Office Public Affairs, the Office Legislative Affairs, the Office Legal Policy, the Office Intergovernmental and Public Liaison, and the Departmental Executive Secretariat.  Def.s Facts  3-5; see Def.s Mem., Ex. (Hermilla Decl.)  5-8; Def.s Mem., Ex. (Declaration Vanessa Brinkmann (Brinkmann Decl.))  6-27.  The DOJs Office Information Policy (OIP) processed the request behalf several the offices listed above.  Def.s Mem., Ex. (Brinkmann Decl.)    
 The results these searches were communicated the plaintiff series letters during the first several months 2010. January 15, 2010, the OIP informed the plaintiff that some offices within the DOJ had completed their searches, and that all the records located were being withheld their entirety pursuant Exemption the FOIA.  Def.s Mem. Compl.   The plaintiff administratively appealed this determination letter dated January 29, 2010; however, due inadvertent error, this letter was misdirected and the OIP did not acknowledge receipt the appeal until April 13, 2010.  Compl.  13. letter dated February 2010, the Civil Rights Division produced some records the plaintiff, id.  12, which included [c]opies pleadings and filings related to the New Black Panther Party case, [c]opies e[-]mail and correspondence from the court related to the case, and [l]etters the [d]efendants from the Department Justice, Def.s Mem., Ex. (Hermilla Decl.), Ex.  The DOJ further advised the plaintiff that would withholding other records pursuant FOIA Exemptions and  Def.s Mem. letter dated March 26, 2010, the plaintiff administratively appealed the response the Civil Rights Division the OIP.  Id. that same day, the OIP sent letter the plaintiff stating that responsive records were located the searches conducted the Office Legislative Affairs and the Office Intergovernmental and Public Liaison.  Compl.  11. May 24, 2010, while the two administrative appeals were still pending, the plaintiff filed this action.2  Nonetheless, the DOJ continued process the plaintiffs request, and eventually notified the plaintiff that additional records were located and were being withheld pursuant Exemptions and  See Def.s Mem. this point, approximately documents remain issue.3  Def.s Reply n.4.  The plaintiff has not raised any challenge  The plaintiffs administrative appeals were closed after initiated this action.  Def.s Mem. n.1. explained more detail later this opinion, the documents issue this case are itemized two Vaughn indices that were submitted the DOJ.  Def.s Mem., Ex. (Hermilla Decl.), Ex. id., Ex. (Brinkmann Decl.), Ex.  The indices arrange the documents group and document numbers.  E.g., id., Ex. (Hermilla Decl.), Ex. number the documents issue are e-mails e-mail chains, and some those documents are further 
subdivided with both document number and corresponding lower case letter.  For example, document 12a-b e-mail chain consisting one e-mail and response.  Id., Ex. (Hermilla Decl.), Ex.  For the purposes determining the number documents dispute, the Court treated document 12a-b and other similarly listed records one document. the Court alluded above, the plaintiff initially questioned the adequacy the DOJs searches well the propriety its assertion Exemption  See Pl.s Mem. 4-6, 21-25.  However, after reviewing the supplemental declarations submitted the DOJ, the plaintiff now agrees that the DOJs searches were adequate.  Pl.s Reply n.1. addition, light clarification regarding the date several documents, the plaintiff longer contests the DOJs assertion Exemption  Id.  Finally, the plaintiff did not raise any challenge the DOJs assertion Exemption either its opening brief earlier email correspondence with the DOJ identifying its concerns with the Departments withholdings.   See Pl.s Mem.; Def.s Mem., Ex. (Declaration Jacqueline Coleman Snead), Ex. 1-2. the plaintiff now concedes, the only legal issues before [the] Court concern the scope FOIA Exemption 5.  Pl.s Reply 
with respect the DOJs assertion Exemption and the adequacy the DOJs searches, and the propriety its assertion Exemption are longer dispute.4  The resolution this case now centers the DOJs assertion Exemption the FOIA the basis for withholding responsive records.    
II. STANDARD REVIEW 
 Courts will grant motion for summary judgment under Rule the Federal Rules Civil Procedure the movant shows that there genuine dispute any material fact and the movant entitled judgment matter law.  Fed. Civ. 56(a).  When agency seeking summary judgment the basis agency affidavits asserts through those affidavits that has properly withheld documents parts documents pursuant FOIA exemption, the agencys affidavits must describe the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted either contrary evidence the record nor evidence agency bad faith.  Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).  Agency affidavits submitted the FOIA context are accorded presumption good faith.  SafeCard Servs., Inc. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991).   
The burden the agency show that the requested material falls within FOIA exemption.  Petroleum Info. Corp. Dept the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (quoting U.S.C.  552(a)(4)(B)).  Consistent with congressional intent tilting the scales favor full disclosure, courts impose substantial burden agency seeking avoid disclosure based the FOIA exemptions.  See Morley CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007).  Consequently, exemptions from disclosure must narrowly construed and conclusory and generalized allegations exemptions are unacceptable.  Id. 1114-15 (citation omitted).  Nonetheless, [w]hen disclosure touches upon certain areas defined the exemptions [,] the [FOIA] recognizes limitations that compete with the general interest disclosure, and that, appropriate cases, can overcome it.  Natl Archives Records Admin. Favish, 541 U.S. 157, 172 (2004).   
III. LEGAL ANALYSIS 
 Exemption provides that inter-agency intra-agency memorandums letters which would not available law party other than agency litigation with the agency are not subject disclosure under the FOIA. U.S.C.  552(b)(5). order for agency prevail under the privilege against disclosure agency document, the documents source must Government agency, and must fall within the ambit privilege against discovery under judicial standards that would govern litigation against the agency that holds it.5  Dept  All the records issue this case are e[-]mails between, notes and briefing materials created by, officials in the Offices the Attorney General, Deputy Attorney General, Associate Attorney General, and Civil Rights Division, Def.s Mem. n.8, and are therefore inter-agency intra-agency communications within the meaning Exemption the FOIA. U.S.C.  552(b)(5).   
 
Interior Bureau Indian Affairs Klamath Water Users Protective Assn, 532 U.S. (2001).  [T]he parameters Exemption are determined reference the protections available litigants civil discovery; material not available discovery, may withheld from FOIA requesters.  Burka Dept Health Human Servs., F.3d 508, 516 (D.C. Cir. 1996). other words, document would not subject disclosure the civil discovery context, exempt from disclosure under FOIA Exemption  Id.  Exemption has been construed to exempt those documents, and only those documents, normally privileged the civil discovery context, those privileges being (1) the attorney work-product privilege, (2) the deliberative-process privilege, and (3) the attorney-client privilege.  See Citizens for Responsibility Ethics Washington Natl Archives Records Admin., 715 Supp. 134, 138 (D.D.C. 2010) (Walton, J.) (quoting NLRB Sears, Roebuck Co., 421 U.S. 132, 148-49 (1975)).   Here, the DOJ relies the attorney work-product privilege the basis for withholding all but one the records.6  Def.s Mem. 13-19.  The DOJ also claims that all the records are separately protected the deliberative-process privilege.  Id. 19-30.  The Court will consider both these claims turn.  The DOJs opening brief specifically asserts the work-product privilege all the records dispute except for documents 37a-c, 74a-c, and 112-114.  See Def.s Mem. 16-18 nn. 10-13.  The DOJs declarations, however, indicate that documents 74a-c and 112-114 were fact also withheld that basis.  See id., Ex. (Hermilla Decl.)  27A(9) (document 74a-c); id., Ex. (Brinkmann Decl.)  54-55 (documents 112-114). not absolutely clear the Court whether document 37a-c was withheld pursuant the work-product privilege, see id., Ex. (Hermilla Decl.)  15, 27B, but apparent that the DOJ relies the deliberative-process privilege the basis for withholding this document, Def.s Mem. 25-26.  Thus, the Court will not address the work-product privilege document 37a-c and instead will consider its withholding under the deliberative-process privilege.  The Attorney Work-Product Privilege recently stated the District Columbia Circuit, [t]he work-product doctrine shields materials prepared anticipation litigation for trial for another party for that other partys representative (including the other partys attorney, consultant, surety, indemnitor, insurer, agent).  McKinley Bd. Governors the Fed. Reserve Sys., F.3d __, __, No. 10-5353, 2011 2162896, (D.C. Cir. June 2011) (citation omitted).  [I]t essential the litigation process that lawyer work with certain degree privacy, free from unnecessary intrusion, Judicial Watch, Inc. Dept Justice, 432 F.3d 366, 369-70 (D.C. Cir. 2005) (Judicial Watch I) (quoting Hickman Taylor, 329 U.S. 495, 510-11 (1947)), and the work-product privilege provides zone privacy within which think, plan, weigh facts and evidence, candidly evaluate case, and prepare legal theories.  Coastal States Gas Corp. Dept Energy, 617 F.2d 854, 864 (D.C. Cir. 1980); see Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (By ensuring that lawyers can prepare for litigation without fear that opponents may obtain their private notes, memoranda, correspondence, and other written materials, the privilege protects the adversary process.).   
While the work-product privilege protects such deliberative materials also protects factual materials prepared anticipation litigation.  Tax Analysts IRS, 117 F.3d 607, 620 (D.C. Cir. 1997).  Thus, [a]ny part document] prepared anticipation litigation, not just the portions concerning opinions, legal theories, and the like, protected the work[-]product doctrine and falls under Exemption 5.  Id.  Therefore, factual material itself privileged when appears within documents that are attorney work product,7 and record may withheld  This Court recently issued decision criminal case discussing the distinction between fact work product and opinion work product and applying that distinction the context request for materials generated third-party law firm the course its investigation into the use performance-enhancing drugs professional baseball.  See United States Clemens, Criminal Action No. 10-223, Supp. __, __, 2011 2489743, *20 (D.D.C. June 23, 2011) (Walton, J.).  There, the Court ordered the law firm produce some the materials the grounds that they constituted fact work product and because the defendant had made the required showing need.  Id. the FOIA context, however, [t]he work-product privilege simply does not distinguish between factual and deliberative materials.  Martin Office Special Counsel, 819 F.2d 1181, 1187 (D.C. Cir. 1987).  Thus, if the work-product privilege protects the documents issue here, Exemption (b)(5) protects them well, regardless their status factual deliberative.  Id.   
under the attorney work-product protection Exemption then segregability not required.  Judicial Watch 432 F.3d 371.  While not all work undertaken lawyers finds protection the work-product privilege, Sealed Case, 146 F.3d 887, the Supreme Court has made clear [that] the doctrine should interpreted broadly and held largely inviolate, Judicial Watch 432 F.3d 369. noted earlier, the DOJ contends that the vast majority the records issue this case were properly withheld under Exemption attorney work product.  See Def.s Mem. 13-19.  The DOJ explains that asserted the work-product doctrine records that themselves are attorney work product well records that describe summarize that work product.  Id. 16.  According the DOJ, most the withheld records are classic attorney work product, such e-mails containing draft memoranda along with related discussions and legal analyses about the New Black Panther Party case.  See id.  The DOJ also represents that withheld certain records that post-date the filing the notice dismissal the New Black Panther Party case inasmuch they were created connection with describe events occurring during the course the litigation.  Id., Ex. (Brinkmann Decl.)  54; see also id., Ex. (Hermilla Decl.)  27E,   
The plaintiff counters that the DOJ improperly invoked the work-product doctrine. general level, the plaintiff states that from the declarations and the Vaughn index [it] unclear exactly what type information being withheld, and thus faults the DOJs submissions for not adequately identif[ying] which documents were created Department employees acting attorneys and which documents were created Department employees acting government officials.  Pl.s Mem. 15.  More specifically, the plaintiff asserts that the DOJ improperly applied the work-product doctrine number individual documents.  See id. 18-19, 21-22, 26.  The plaintiff takes particular issue with the withholding documents created after the DOJs May 15, 2009 dismissal the New Black Panther Party case, remarking that the courts have never found that [the work-product doctrine] can applied documents created after litigation has ended for the purpose explaining decision.  Id. 16.   
After carefully reviewing the declarations and Vaughn indices, the Court finds that the DOJ has appropriately declined produce all the withheld records that pre-date the DOJs dismissal attorney work product. initial observation, based the descriptions the documents set forth the DOJs submissions, the vast majority these records fall well within the scope the work-product doctrine they include e-mail messages forwarding and transferring draft memoranda and draft pleadings that contain analyses, discussions, questions, suggestions, revisions, well requests for additional legal research, requests for supporting evidence for various legal claims, and discussions [about] alternate proposals for claims relief.  Def.s Mem., Ex. (Hermilla Decl.)  27(A)(4); see id., Ex. (Brinkmann Decl.)  (indicating that certain documents reflect attorneys within the litigating office shar[ing] and discuss[ing] the facts the litigation they relate the relevant legal provisions and giv[ing] opinions available courses action the litigation).  Additionally, the withheld records contain Civil Rights Division attorneys private thoughts, tactics, strategy, factual and legal analyses, and appraisals the sufficiency the available evidence, id., Ex. (Hermilla Decl.)  27A(9), and reveal the decisionmaking process, strategies and opinions litigators and officials within [the Civil Rights Division] the [New Black Panther Party] litigation, id., Ex. (Brinkmann Decl.)  55.  Some the withheld records also reflect not only the work attorneys on the ground, but also the internal discussions and feedback senior management offices.  Id.  Notably, all these documents were created the context reasonable anticipation the motion filed in the New Black Panther Party case.  Id., Ex. (Hermilla Decl.)  15; id., Ex. (Brinkmann Decl.)  40. the District Columbia Circuit has observed, attorney work product reflected, course, interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.  Judicial Watch 432 F.3d 370 (quoting Hickman, 329 U.S. 510-11); see also Heggestad U.S. Dept Justice, 182 Supp. (D.D.C. 2000) (The primary purpose [the work-product privilege] protect against disclos[ing] the mental impressions, conclusions, opinions, legal theories attorney other representative party concerning litigation.).  
 For the most part, the various arguments raised the plaintiff are not convincing. begin with, the Court does not agree with the plaintiffs criticism that the Vaughn indices and declarations are unclear about the type information being withheld.  Pl.s Mem. 15. Vaughn index must adequately describe each withheld document deletion from released document, must state the exemption claimed for each deletion withheld document, and explain why the exemption relevant.  Summers Dept Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (internal quotation marks omitted).  Here, the DOJ has submitted two Vaughn indices.  Def.s Mem., Ex. (Hermilla Decl.), Ex. id., Ex. (Brinkmann Decl.), Ex.  Upon examining these submissions, the Court generally agrees that they are sufficiently detailed, state the FOIA exemption claimed (in this case Exemption 5), and provide adequate basis for the Court assess whether the Exemption was appropriately invoked.  Examples typical entries the Vaughn indices that describe the withheld information read follows:  
 Section Chief e[-]mails the supervising Acting [Deputy Associate Attorney General] requesting prompt discussion respond the Acting [Deputy Attorney Generals] detailed questions and analysis the proposed draft filings for continuing [the New Black Panther Party] litigation the merits, legal strategies and issues, constitutional issues, and proposed relief.  

 
 Acting [Deputy Associate Attorney General] forwarding additional documents for [the Civil Rights Division] Appellate Sections review, including the Acting [Deputy Associate Attorney Generals] analyses and opinion the development different approaches under consideration [the New Black Panther Party] litigation.  E[-]mail contains the Acting [Deputy Associate Attorney Generals] candid assessment legal research with substantive questions the case law and breadth proposed relief.  This document predecisional and contains deliberations between the [Civil Rights Division] Front Office and the request for Appellate Sections internal legal opinions and recommendations the merits, legal strategies, constitutional issues, and potential courses actions proposed [the Voting] Section the pending [New Black Panther Party] litigation for documents finalized for filing May 15th. 

 
 Supervising Acting [Deputy Associate Attorney Generals] response [the Civil Rights Division] Appellate Section attorney and resent copies proposed draft documents for Appellate Sections review and legal advice.  This request for Appellate Sections internal legal opinions and recommendations the merits, legal strategies, constitutional issues, and potential courses actions proposed [the Voting Rights] Section the pending [New Black Panther Party] litigation.   

 
 Section Chiefs response his supervising Acting [Deputy Associate Attorney General] for additional information merit and supporting evidence and summarizing several different witness statements which witnesses are identified name.   

 
 Individuals Response pending [Office Professional Responsibility] investigation which includes authors thoughts litigation developments and characterization actions and discussions with colleagues the [New Black Panther Party] litigation.  Author describes discussions among officials litigation strategy and various litigation and various litigation options and assessments outcomes.   

 
 E-mail discussion between attorneys [the Office the Associate Attorney General] and [Civil Rights Division], then within [the Office the Associate Attorney General], regarding current status the [New Black Panther Party] litigation and, specifically, [the Civil Rights Divisions] development position with respect potential actions under consideration the case.   

 See id., Ex. (Hermilla Decl.), Ex. 15, 18-21 (documents 23, 40, 60, and 86-99); id., Ex. (Brinkmann Decl.), Ex. (document 105).  The DOJ also argues that documents 28, 60, and 86-99 are separately protected under Exemption U.S.C.  552(b)(7).  Def.s Mem. 31-36.  Because the Court concludes that these records were appropriately withheld under Exemption need not consider this argument.   
 The plaintiff also maintains that the work-product doctrine was inappropriately invoked documents 13, 14, 36, 44, 49, 50, 55, 57, 67, 68, and because these documents are informational e[-]mails that are nothing more than summaries the actions that the career lawyers were taking.  Pl.s Mem. 18-19.  The plaintiff posits that these e-mails were improperly withheld because the recipients [of the e-mails] were not acting attorneys making decisions litigation: they were acting supervisors overseeing and staying informed about the work their employees.work their employees.work their employees. related argument, the plaintiff contends that documents 101b, 102, 103b-d, 104a-b, 105a-c, and 107a were improperly withheld under the deliberative-process privilege because these documents are nothing more than status updates.  Pl.s Mem. 25.  The Court does not agree with this characterization.  According the declaration Vanessa Brinkmann, these documents consist back and forth discussions, forwards, and spinoff discussions, which [Civil Rights Division] attorneys loop supervisory officials, who then respond with any thoughts guidance, engage discussion amongst themselves.  Def.s Mem., Ex. (Brinkmann Decl.)  42.  These particular documents reflect how the Civil Rights Division briefs supervisory [DOJ] offices the progress the case, and litigators and supervisory attorneys exchange feedback the component and senior Department officials consider different options.  Id., Ex. (Brinkmann Decl.)  45.  Thus, the extent the plaintiff challenges these particular records not falling under the attorney work-product doctrine, the Court does not agree.   
 The plaintiffs remaining arguments pertain the documents that post-date May 15, 2009, the day that the DOJ filed its notice voluntary dismissal the New Black Panther Party case.  See Pl.s Mem. 16, 19-22, 26; Pl.s Reply 5-6.case.  See Pl.s Mem. 16, 19-22, 26; Pl.s Reply 5-6.case.  See Pl.s Mem. 16, 19-22, 26; Pl.s Reply 5-6.  The DOJ notes that there are twenty-three documents this category:  83a-d, 84a-c, 85a-d, 86-99, 107a, 110-11, 113, 116, and 117a-d.  Def.s Reply n.8. 
  According the Vaughn indices and the two declarations submitted the DOJ, these documents were generally created the course recounting specific factual and legal aspects the New Black Panther Party litigation for the preparation public statements, responding internal investigation about the handling the case, briefing officials within the DOJ about the decisionmaking process.  See Def.s Mem., Ex. (Hermilla Decl.), Ex. 16-21; id., Ex. (Brinkmann Decl.), Ex. 2-4. particular, documents 86-99 are memoranda from Civil Rights Division employees compiled response investigation the DOJs Office Professional Responsibility regarding the DOJs actions the New Black Panther Party litigation.  Id., Ex. (Hermilla Decl.)  10f.  Among other things, documents 86-99 include summaries internal conversations with colleagues and with supervisors reviewing the merits, legal strategies, and candid assessments the evidence, opinions, and analyses the draft documents, case law, facts, First Amendment constitutional issues, and various types and scope relief.  Id., Ex. (Hermilla Decl.)  27F(3).  Documents 83, 84, and are e-mails between officials the Civil Rights Division and the Office Public Affairs that concern responses media inquiries and reflect back and forth discussions and comments concerning factual and legal analysis the New Black Panther Party litigation.  Id., Ex. (Hermilla Decl.)  27E(1).   
Similarly, documents 110, 111, and 117a-d are records prepared brief DOJ senior leadership response Congressional and media inquiries; these documents rehash the litigation process they peel back core decisionmaking processes which unfolded during the course  the New Black Panther party case.  Id., Ex. (Brinkmann Decl.)  51.  Document 113, only portion which responsive the plaintiffs FOIA request, consists handwritten attorneys notes generated during Civil Rights Division meeting that reflect[s] discussion development the [New Black Panther Party] litigation.  Def.s Mem., Ex. (Brinkmann Decl.), Ex. see also id., Ex. (Brinkmann Decl.)  (explaining that the notes were created attorneys the [DOJs] senior management offices detailing their discussions and thoughts about the [New Black Panther Party] litigation).   Document 116 detailed chronology the DOJs involvement the New Black Panther Party case that presents an unvarnished presentation the authors thoughts litigation decisions, actions, strategies, and recommendations they developed, well ruminations and retrospective analyses the variety the decision[-]making process in several DOJ offices.  Id., Ex. (Brinkmann Decl.), Ex.  Finally, document 107 e-mail sent May 16, 2009, official the Office the Associate Attorney General three other DOJ officials that transmitted them the court papers filed the New Black Panther Party case, brief[s the] recipients the nature the relief and] provides additional comment and characterization the relief sought.  Id., Ex. (Brinkmann Decl.), Ex.   
 The DOJs argument with respect these documents has some force. outlined above, the materials post-dating May 15, 2009, include assessments the facts and evidence, discussions legal strategy, and characterizations the DOJs internal deliberations and decisionmaking process the New Black Panther Party litigation.  Def.s Mem., Ex. (Hermilla Decl.), Ex. 16-21; id., Ex. (Brinkmann Decl.), Ex. 2-4.  The documents reiterate and memorialize information that itself attorney work product, and that sense are arguably seen work product their own right.  See Judicial Watch, Inc. U.S. Dept Homeland Sec., 736 Supp. 202, 210 (D.D.C. 2010) (determining that e-mail messages sent after prosecution concluded were appropriately withheld attorney work product because the e-mails contained internal deliberations that included consideration privileged attorney work[]product from the prior prosecution).  Moreover, disclosing information that reveals behind-the-scenes account the DOJs litigation decisions could also undermine the adversary process, something the work-product privilege designed protect.  See e.g., Judicial Watch, 432 F.3d 369-70; Coastal States, 617 F.2d. 864-65. the other hand, light the circumstances this case, difficult see how these documents were prepared obtained because the prospect litigation, which the testing question the Court must answer evaluating the DOJs work-product claim.  Senate Puerto Rico, 823 F.2d 587 n.42; see also Safecard Servs., 926 F.2d 1202 (To meet th[e] standard [of being prepared in anticipation litigation] the documents must least have been prepared with specific claim supported concrete facts which would likely lead litigation mind. (citing Coastal States, 617 F.2d 864)).  Although injunction remains place the New Black Panther Party case, Def.s Reply n.9, the filing the motion for voluntary dismissal largely marked the end the litigation. such, the documents prepared subsequent that event were not prepared contemplation litigation and are thus outside the scope the work-product privilege.place the New Black Panther Party case, Def.s Reply n.9, the filing the motion for voluntary dismissal largely marked the end the litigation. such, the documents prepared subsequent that event were not prepared contemplation litigation and are thus outside the scope the work-product privilege.place the New Black Panther Party case, Def.s Reply n.9, the filing the motion for voluntary dismissal largely marked the end the litigation. such, the documents prepared subsequent that event were not prepared contemplation litigation and are thus outside the scope the work-product privilege. explained later this opinion, however, the Court concludes that these documents were appropriately withheld under the deliberative-process privilege.     
 Accordingly, the DOJ has adequately justified its withholding all documents pre-dating the filing the notice voluntary dismissal under Exemption attorney work product, with the exception document 37a-c.  See supra n.6.  Because the attorney work-product privilege protects from disclosure the entire contents [covered] documents  i.e., facts, law, opinion, and analysis, Judicial Watch 432 F.3d 372, segregability not required, id. 371-72; therefore, the Court need not consider the DOJs alternative argument that those documents covered the privilege are also protected from disclosure the deliberative-process privilege.  See Def.s Mem. 19-30.  The Deliberative-Process Privilege 
The deliberative-process privilege exists protect from disclosure documents reflecting advisory opinions, recommendations and deliberations comprising part process which governmental decisions and policies are formulated.  Sears, Roebuck, 421 U.S. 150 (internal quotation marks omitted). designed promote candid discussion within the agency, and improve its decisionmaking process, which advances the agencys ability perform its functions.  Formaldehyde Inst. Dept Health Human Servs., 889 F.2d 1118, 1122 (D.C. Cir. 1989) (citation omitted).  The privilege ensures that government agencies are not forced operate fishbowl.  Petroleum Info. Corp. Dept Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992). qualify for protection under the deliberative-process privilege, an agencys materials must both predecisional and deliberative.  Natl Assn Home Builders Norton, 309 F.3d 26, (D.C. Cir. 2002).  A document predecisional precedes, temporal sequence, the decision which relates.  Senate Puerto Rico, 823 F.2d 585.  Material deliberative reflects the give-and-take the consultative process.  Petroleum Info, 976 F.2d 1434 (quoting Coastal States, 617 F.2d 866).  The key question determining whether the material deliberative nature is whether disclosure the information would discourage candid discussion within the agency.  Access Reports Dept Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991) (quoting Dudman Commcns Corp. Dept Air Force, 815 F.2d 1565, 1567-68 (D.C. Cir. 1987)).  Moreover, Exemption protects not only communications [that] are themselves deliberative nature, but all communications [that], revealed, would expose public view the deliberative process agency.  Russell Dept the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); see also Mckinley, F.3d __, 2011 2162896 (Congress enacted FOIA Exemption precisely because determined that disclosure material that both predecisional and deliberative does harm agencys decisionmaking process.).  Finally, contrast the work-product privilege, [f]actual material not protected under the deliberative[-]process privilege unless inextricably intertwined with the deliberative material.  Judicial Watch 432 F.3d 372 (citation omitted). light the Courts conclusions regarding the DOJs attorney work-product claims, and discussed earlier, see supra note the documents remaining issue are the records post-dating the filing the motion for voluntary dismissal well document 37a-c. this former category, post-decisional documents may still covered under the deliberative-process privilege the extent they recount reflect predecisional deliberations.  Judicial Watch, Inc. U.S. Dept Treasury, Supp. __, __, Civil Action No. 09-1508 (BAH), 2011 2678930, *14 (D.D.C. July 11, 2011) (citing Citizens for Responsibility Ethics Washington U.S. Dept Justice, 658 Supp. 217, 234 (D.D.C. 2009)).  Indeed, [i]t would exalt form over substance exempt documents which staff recommend certain action offer their opinions given issues but require disclosure documents which only report what those recommendations and opinions are.  Mead Data Cent. Inc., U.S. Dept Air Force, 566 F.2d 242, 257 (D.C. Cir. 1977).  The rationale for this conclusion, the Supreme Court has recognized, that the future quality agencys decisions could affected the ingredients the decisionmaking process are disclosed.  Sears, Roebuck, 421 U.S. 151; see also Citizens for Responsibility Ethics, 658 Supp. 234 (Clearly, the [Supreme] Courts decision reflects concern for the chilling effects that such disclosure would have future agency deliberations.).  Given the nature the post-decisional documents discussed detail earlier, see supra pp. 15-17, the Court concludes that they were appropriately withheld under the deliberative-process privilege.  See Judicial Watch, Supp. __, 2011 2678930 *14 (finding that the deliberative-process privilege covered e-mail exchange reflect[ing] internal deliberations how respond press inquiry regarding the agencys earlier decision award TARP funding particular institution); Judicial Watch, 736 Supp. 208-09 (concluding that the deliberative-process privilege covered e-mails discuss[ing] how respond on-going inquiries from the press and Congress regarding earlier agency decision).        
The description this document convinces the Court that was appropriately withheld under the deliberative-process privilege.  Document 37a-c predecisional dated May 11, 2009, and thus preceded the filing the motion for voluntary dismissal May 15, 2009. addition, the Court finds that disclosing preliminary report the character described above would discourage candid discussion within the DOJ, Access Reports, 926 F.2d 1195, and expose outside observation the deliberative process the agency, Russell, 682 F.2d 1048, events the deliberative-process privilege designed protect, Petroleum Info., 976 F.2d 1434; see also McKinley, F.3d __, 2011 2162896 *7-8 (discussing the purposes the deliberative-process privilege).  Accordingly, the DOJ has properly withheld this record under the deliberative-process privilege.    Finally, the DOJ represents that all the withheld materials (including document 37a-c and the records post-dating the filing the motion for voluntary dismissal) were reviewed and determined contain reasonably segregable, non-exempt information.  Def.s Mem., Ex. (Hermilla Decl.)  16; see also id., Ex. (Hermilla Decl.)  (I have carefully reviewed the responsive documents and determined that [they] contain reasonably segregable, non-exempt information; therefore, for all documents, segregation was possible.); id., Ex. (Brinkmann Decl.)  ([W]e carefully reviewed each the documents determine whether any information could segregated for release.  They are exempt full and contain reasonably segregable, nonexempt information.). far the Court can tell, the plaintiff does not challenge the DOJs segregability assessment these documents.   Nevertheless, the DOJ bears the burden showing that such segregable information exists, Army Times Publg Co. Dept Air Force, 998 F.2d 1067, 1071 (D.C. Cir. 1993), and must provide detailed justification for its non-segregability, Johnson Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting Mead Data Cent., 566 F.2d 261).   
While the Court certainly appreciates Mr. Hermilla and Ms. Brinkmanns efforts, based the level detail provided other parts their declarations, the Court convinced that the DOJ can provide more comprehensive description why any non-exempt material document 37a-c and the post-May 15, 2009 records cannot segregated.  For example, the DOJ can describe what proportion the information th[e] documents[, any,] non-exempt and how that material dispersed throughout the document[s].  Mead Data Cent., 566 F.2d 261. stands now, the description the DOJs segregation efforts too general for the Court, and the plaintiff, evaluate whether any factual material these documents inextricably intertwined with the deliberative material and would thus permit the DOJ withhold the documents their entirety.  Johnson, 310 F.3d 776.   Accordingly, the Court will deny the DOJs motion for summary judgment part, and order the DOJ submit renewed motion for summary judgment accompanied declaration other documentation that solely addresses the segregability issue document 37a-c and the records post-dating the filing its notice voluntary dismissal. 
IV. CONCLUSION 
 For the reasons stated above, the Court concludes that the DOJ has properly asserted Exemption the FOIA the basis for withholding all the documents that are dispute.  However, the DOJ has not provided sufficiently detailed justification regarding the non-segregability document 37a-c, well the records post-dating the filing its notice voluntary dismissal.  Accordingly, the DOJs motion for summary judgment must denied without prejudice these documents but granted all other documents withheld under Exemption  Upon submission the Court renewed motion for summary judgment, along with declaration other documentation that addresses the segregability issue, the Court will reevaluate the DOJs request for summary judgment.  Should the DOJ fail file such motion provide adequate detail regarding why these documents cannot segregated, the DOJ will required disclose the non-exempt portions the plaintiff. ORDERED this 4th day August, 2011.12 appropriate Order will issued contemporaneously with this Memorandum Opinion. 
    /s/   
REGGIE WALTON 
United States District Judge



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