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Judicial Watch • 2011 jw-v-doj-rep2opp2cm4sj-01252011

2011 jw-v-doj-rep2opp2cm4sj-01252011

2011 jw-v-doj-rep2opp2cm4sj-01252011

Page 1: 2011 jw-v-doj-rep2opp2cm4sj-01252011

Category:Legal Document

Number of Pages:7

Date Created:January 25, 2011

Date Uploaded to the Library:July 30, 2013

Tags:Wolfe, specifically, decision, reports, Memorandum, privilege, Human, summary, process, access, Civil, senate, health, Pursuant, Attorney, documents, responsive, justice, defendant, document, watch, plaintiff, DOJ, michael, judicial, department, states, court, united, EPA, ICE, CIA


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  • demand_answers

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JUDICIAL WATCH, INC.,  
Plaintiff,  Civil Action No. 1:10-cv-00851 (RBW)  
U.S. DEPARTMENT JUSTICE,  
Defendant.  

____________________________________) 
PLAINTIFFS REPLY DEFENDANTS OPPOSITION  PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 
Plaintiff Judicial Watch, Inc., counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, respectfully submits this memorandum law reply Defendant U.S. Department Justices opposition Plaintiffs cross-motion for summary judgment. grounds thereof, Plaintiff states follows: 

MEMORANDUM LAW Introduction. 
Contrary Defendants assertions, this case not about whether Plaintiff approves disapproves the Department Justices prosecutorial decisionmaking United States New Black Panther Party for Self-Defense, Civil Action No. 2:09-cv-0065 (E.D. Pa.) (New Black Panther Party case). about political interference that decisionmaking process and Defendants efforts avoid public scrutiny that interference.  Regardless what this case about, however, the only legal issues before this Court concern the scope FOIA Exemption For material withheld pursuant the deliberative process privilege, Defendant must demonstrate precisely how the disclosure such material would harm its decision making process. Defendant has failed so. Similarly, Defendant misconstrues the attorney work product doctrine. Defendant has not satisfied its burden under FOIA and must produce all responsive material. 
II. 	Argument. 
Contrary Defendants assertions, Plaintiff has not conceded the propriety Defendants withholdings pursuant FOIA Exemption  Specifically, Plaintiff challenged, and continues challenge, Defendants assertion that all material issue protected the deliberative process privilege, the attorney work product doctrine, both.1 	Defendant has not demonstrated that disclosure the withheld material  would harm its decision making process. 
Plaintiff does not attempt impose additional burden Defendant seek redefine Defendants burden under the deliberative process privilege.  Defendants Memorandum Law Support its Motion for Summary Judgment (Defs Mem.) 22; Defendants Reply and Opposition Plaintiffs Cross-Motion for Summary Judgment (Defs Rep.) 15. Plaintiff instead requests that Defendant comply with the well-established law this Circuit. Pls Opp. 13-14.  For Defendant properly withhold material pursuant the deliberative process privilege, must demonstrate specifically how the disclosure such material would harm its decision making process. Horowitz Peace Corps., 428 F.3d 271, 276 
(D.C. Cir. 2005). 
Defendant has submitted supplemental declarations.  Based the additional information found these supplemental declarations and absent from the original declarations, Defendant has satisfied its burden demonstrating that conducted reasonable search for responsive records. Similarly, Defendant corrected its mistake.  Now that Plaintiff knows that the OPR memorandum was sent October 23, 2009, and not October 23, 2008, Plaintiff satisfied with Defendant claims Exemption  Only Defendants withholdings under FOIA Exemption remain issue. 
U.S. Court Appeals for the D.C. Circuit (D.C. Circuit) has continuously held that courts must focus less the nature the materials sought and more the effect the materials release. 815 F.2d 1565, 1568 (D.C. Cir. 1987). More succinctly, the key question determining whether material deliberative 
whether the disclosure materials would expose agencys decision making process such way discourage candid discussion within the agency and thereby undermine the agencys ability perform its functions. 
Horowitz, 428 F.3d 276 (quoting Dudman Comm. Corp., 815 F.2d 1568); see also, Formaldehyde Institute Department Health and Human Services, 889 F.2d 1118, 1123-24 
(D.C. Cir. 1989) (The pertinent issue what harm, any, the [documents] release would [an agencys] deliberative process.); Access Reports Department Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991) (The key question identifying deliberative material whether disclosure the information would discourage candid discussions.).  Therefore, order succeed deliberative process privilege claim under Exemption agency must demonstrate with specificity that the withheld material issue would actually inhibit candor the decision making process available the public.  Army Times Pub. Co. Department the Air Force, 998 F.2d 1067, 1072 (D.C. Cir. 1993); Wolfe Department Health and Human Services, 839 F.2d 768, 778 (The burden demonstrating that disclosure would likely have adverse effects agency decisionmaking falls the government.). 
Moreover, agency cannot meet its statutory burden justification conclusory allegations possible harm.  Mead Data Central, Inc. U.S. Department the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977). must show specific and detailed proof that disclosure would defeat, rather than further, the purposes the FOIA.  Id. Such can done through was properly withheld pursuant the deliberative process privilege only after reviewing testimony that showed making [the withheld] documents publicly available would deter [individuals] from creating them and deprive such officials the benefit review and comment from other departments.  Horowitz, 428 F.3d 276-277. Similarly, Formaldehyde Institute, the D.C. Circuit held that the withheld records were properly exempt from disclosure pursuant the deliberative process privilege only after reviewed indisputable evidence that disclosure reviewers comments would seriously harm the deliberative process.  889 F.2d 1124. that case, the agency produced declarations asserting that the 
release reviewers' editorial comments would very likely have chilling effect either the candor potential reviewers government-submitted articles 
the ability the government have its work considered for review all.  
Furthermore, government author likely less willing submit her work refereed journal all critical reviews could come light somewhere down 
the line. Id. Both Horowitz and Formaldehyde Institute, the D.C. Circuit held that the material was properly withheld pursuant the deliberative process privilege only after the agencies adequately presented evidence that the disclosure the withheld material would cause harm its decision making process. addition, both Gutman Department Justice, 238 Supp. 284 (D.D.C. 2003) and Hamilton Sec. Group, Inc. Department Housing and Urban Development, 106 Supp. (D.D.C. 2000), cases relied upon Defendant, the District Court applied the very standard articulated the D.C. Circuit. Gutman, the District Court explicitly stated, The critical factor determining whether the material deliberative nature is whether disclosure the information would discourage candid discussion within the agency.  238 F.2d 293 (quoting Access Reports, 926 F.2d 1195). Moreover, the Court found that the responsive represented precisely the kind information Exemption was designed protect, and that its disclosure could potentially stifle honest and frank communication within the defendant-agency. Id. (quoting Coastal States, 617 F.2d 866). Similarly, Hamilton Sec. Group, Inc., the District Court stated, As explained the D.C. Circuit, [whether material deliberative nature] focuses whether disclosure the requested material would tend discourage candid discussion within agency.  106 Supp. (citing Petroleum Inf. Corp. U.S. Dep't the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992)). Based precedent, for Defendant properly withhold material pursuant the deliberative process privilege, must demonstrate that the disclosure such material would harm its decision making process. 
Yet, Defendant does not even attempt demonstrate with specific evidence that disclosure the withheld material would actually inhibit candor otherwise harm its decision making process. presents evidence the potential harm any its declarations, supplemental declarations, Vaughn indexes. Because Defendant has failed satisfy its burden that disclosure the withheld material would likely have adverse effects its decisionmaking (Wolfe, 839 F.2d 778), Defendant must produce all responsive material. 	Material created post litigation not protected under the attorney work    product doctrine. 
The law this Circuit clear.  The attorney work product doctrine limited documents prepared contemplation litigation.  Coastal States Gas Corp. Department Energy, 617 F.2d 854, 864 (D.C. Cir. 1980) (emphasis added).  More specifically, contrary the unfounded assertions Defendant, post-litigation documents are not protected under the attorney work product doctrine. Senate Puerto Rico rel. Judiciary Comm. United States DOJ, the D.C. Circuit held that material prepared subsequent the closing case 1987) (In particular, note that the DOJ investigation into the Cerro Maravilla incident was closed officially April 16, 1980, and did not reopen until August 1983; absent any additional support, are reluctant credit claim that documents generated while there was active investigation underway were prepared in anticipation litigation.).  Moreover, the D.C. Circuit specifically explained: not mean suggest that documents prepared while active investigations were underway are necessarily unprotected the work-product doctrine; the testing question whether, light the nature the document and the factual situation the particular case, the document can fairly said have been prepared obtained because the prospect litigation.  The presence, or, this case, the absence ongoing investigation but one aspect the relevant factual situation court must consider evaluating agency's work-product claim. 
Id. 587 (internal citations omitted).  Contrary Defendants assertion that the date document created clearly not dispositive (Defs Rep. 12), quite clearly, this Circuit requires that material prepared obtained because the prospect litigation for protected under the attorney work product doctrine.  Senate Puerto Rico, 823 F.2d 587. The only reason the document-creation date Senate Puerto Rico was not dispositive was because the case was reopened. Because Defendant withholding material created after the May 15, 2009 dismissal2 and has not any way asserted that the case will reopened, Defendant has not satisfied its burden demonstrating that the withheld material was created anticipation litigation. Defendant therefore must produce all responsive material. 
Although there active injunction against one the original four defendants, the New Black Panther case for all intents and purposes closed.  The only remaining issue under the courts jurisdiction enforcing the injunction against Minister King Samir Shabazz displaying weapon within 100 feet any open polling location any election day the City Philadelphia. Order 4-5 the United States New Black Panther Party for Self-Defense (filed May 18, 2009) [Dkt. No. 21]. evident from the nature and limited scope the injunction, all issues with respect the New Black Panther case have been settled. 

III. Conclusion. 

For the reasons set forth Plaintiffs opening memorandum and the reasons set forth above, Defendants motion for summary judgment should denied, summary judgment should entered Plaintiffs favor, and Defendant should compelled produce all responsive material.   Dated: January 25, 2011 Respectfully submitted, 
/s/ Michael Bekesha Michael Bekesha (D.C. Bar No. 995749) JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, 20024 
(202) 646-5172 
Attorney for Plaintiff