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Government Oversite Fast and furious ruling 01332

Government Oversite Fast and furious ruling 01332

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Date Created:January 19, 2016

Date Uploaded to the Library:February 18, 2016

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Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
Civil Action No. 12-1332 (ABJ)
Attorney General the United States,
This case concerns Congressional subpoena for documents from plaintiff, the
Committee Oversight and Government Reform the United States House Representatives Committee the defendant, the Attorney General the United States. Before the Court
plaintiff motion compel the production documents [Dkt. 103], which the Court will
grant part and deny part.
The pending motion styled motion compel, but seeks the relief sought the
lawsuit itself: order compelling the production certain documents responsive October
11, 2011 subpoena issued the Committee the Attorney General for records related
Operation Fast and Furious. Compl. [Dkt. #1] particular, the action seeks those
Loretta Lynch replaced Eric Holder, Jr., Attorney General April 27, 2015.
Accordingly, pursuant Federal Rule Civil Procedure 25(d), Loretta Lynch substituted defendant this case.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
records generated after February 2011 that have been withheld the grounds that they are
covered the deliberative process prong the executive privilege. Id. 14.
After the lawsuit was filed, the Department Justice took the position that this Court
did not have should decline exercise jurisdiction over what the Department
characterized political dispute between the executive and legislative branches the
government. The defense warned that would threaten the constitutional balance powers
the Court endeavored weigh the Committee stated need for the material against the
executive interest confidential decision making, the Court were make its own
judgment about whether the negotiation and accommodation process date had been adequate.
Mem. Supp. Def. Mot. Dismiss [Dkt. 13-1] 45. Individual Members
Congress also urged the Court stay its hand and entrust the matter the time-honored
negotiation process.
Memorandum Amici Curiae Reps. Cummings, Conyers, Waxman,
Towns Slaughter Supp. Dismissal [Dkt. 30] Mem. Amici Curiae response the motion dismiss, the Committee argued that was both lawful and
prudent for the Court exercise jurisdiction since the case involved discrete, narrow question law:
This type case bottom, subpoena enforcement case has
been brought and addressed the courts this Circuit many
times before Moreover, this case involves the purely legal
question the scope and application Executive privilege
Pl. Opp. Def. Mot. Dismiss [Dkt. 17] (emphasis original).
The Court agreed. Citing United States Nixon, 418 U.S. 683 (1974), ruled that had
not only the authority, but the responsibility, resolve the conflict.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
[T]he Supreme Court held that was the province and duty
the Court say what the law with respect the claim
executive privilege that was presented that case. Id. 705,
quoting Marbury Madison, U.S. Cranch) 137, 177 (1803).
Any other conclusion would contrary the basic concept
separation powers and the checks and balances that flow from
the scheme tripartite government. Id. 704. Those
principles apply with equal force here. give the Attorney
General the final word would elevate and fortify the executive
branch the expense the other institutions that are supposed its equal, and more damage the balance envisioned the
Framers than judicial ruling the narrow privilege question
posed the complaint.
Mem. Op. (Sept. 30, 2013) [Dkt. 52] Mem. Op. Mot. Dismiss 18; see also id. 16, citing Comm. the Judiciary Miers, 558 Supp. 53, (D.D.C. 2008).
The Committee then moved for summary judgment the grounds that matter
law, the executive branch could not invoke the deliberative process privilege response
Congressional subpoena. Pl. Mot. for Summ. [Dkt. 61]. the Committee view, since
the records did not involve actual communications with the President that would raise separation powers concerns, they had produced. Mem. Supp. Pl. Mot. for
Summ. [Dkt. 61] Pl. Summ. Mem. The Court ruled against the Committee that
issue. Order [Dkt. 81] Order Mot. for Summ. determined that there
important constitutional dimension the deliberative process aspect the executive privilege,
and that the privilege could properly invoked response legislative demand. Id.
citing Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997) Espy
However, the Court also found that defendant blanket assertion the privilege over all
records generated after particular date could not pass muster, because showing had been
made that any the individual records satisfied the prerequisites for the application the
privilege. Order Mot. for Summ. Defendant was ordered review the responsive
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
records determine which, any, records were both pre-decisional and deliberative and
produce any that were not. Id. Defendant was also ordered create detailed list
identifying all records that were being withheld privilege grounds. Id.
The current motion pending before the Court marks the next stage these proceedings, the Committee has moved compel the production every single record described the
list, well body material that defendant did not include the index. Pl. Mot.
Compel Mot. Compel [Dkt. 103] and Mem. Supp. Pl. Mot. Compel Pl. Mem. for Mot. Compel [Dkt. 103-1]. Fundamentally, the Committee takes the
position that not one the records deliberative, and that even some are, the privilege
outweighed this instance the Committee need for the material. particular, the
Committee seeks declaration that intra-agency communications about responding
Congressional and media requests for information are not covered the privilege. Pl. Mem.
for Mot. Compel 29. also argues that the right invoke any privilege has been
vitiated the Department own misconduct. Id. n.15. will explained more detail below, the Court rejects the Committee articulation the scope the privilege. accordance with other authority from this Circuit, the Court
finds that records reflecting the agency internal deliberations over how respond
Congressional and media inquiries fall under the protection the deliberative process privilege. also finds that the defendant detailed list describes the records being withheld with sufficient
detail support the assertion the privilege.
But, both parties recognize, the deliberative process privilege qualified privilege
that can overcome sufficient showing need for the material. Espy, 121 F.3d 737 38.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
This need determination made flexibly case-by-case, hoc basis. [E]ach time [the deliberative process privilege]
asserted, the district court must undertake fresh balancing the
competing interests
Id., quoting Subpoena Served Upon the Comptroller the Currency, 967 F.2d 630, 634
(D.C. Cir. 1992). Thus, while the determination whether the executive exceeded his authority withholding materials began with the sort pure legal inquiry that undeniably rests with the
judiciary, following that process its conclusion necessarily involves the kind balancing that
may raise separation powers concerns when the legislature the other party involved. other words, now that that legal ruling that was the stated justification for the
invocation this Court jurisdiction has been issued, prudential considerations could weigh
against going further and engaging the balancing the competing interests. But here, that
exercise can accomplished without the sort interference legislative executive matters
that courts should endeavor avoid, and the Court can decide this case without assessing the
relative weight the interests asserted the other two co-equal branches government.
There need for the Court invade the province the legislature and undertake its
own assessment the legitimacy the Committee investigation, because the Department
Justice has conceded the point: has repeatedly acknowledged the legitimacy the
investigation. See e.g., Mem. Supp. Def. Mot. Dismiss [Dkt. 13-1] (referring Congress legitimate oversight interests and legitimate investigative concerns Mem.
Supp. Def. Mot. for. Summ. Opp. Pl. Mot. for Summ. [Dkt. 63] Def.
Summ. Mem. Letter from James Cole Darrell Issa (June 20, 2012) [Dkt.
17-3] June Cole Letter [T]he Department has provided significant amount
information the Committee extraordinary effort accommodate the Committee
legitimate oversight interests. and Tr. May 15, 2014 Hearing [Dkt. 79] (counsel for
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
defendant: because had had inaccurate letter believed that was appropriate
provide them with documents explaining that letter
Furthermore, there need balance the need against the impact that the revelation
any record could have candor future executive decision making, since any harm that might
flow from the public revelation the deliberations issue here has already been self-inflicted:
the emails and memoranda that are responsive the subpoena were described detail
report the Department Justice Inspector General that has already been released the
public. See Review ATF Operation Fast and Furious and Related Matters (Redacted),
Office the Inspector General Oversight and Review Division, U.S. Dep Justice (Sept.
2012) Report
Therefore, the Court finds, under the unique and limited circumstances this case, that
the qualified privilege must yield, given the executive acknowledgment the legitimacy the
investigation, and the fact that the Department itself has already publicly revealed the sum and
substance the very material now seeking withhold. Since any harm that would flow
from the disclosures sought here would merely incremental, the records must produced.
The Court emphasizes that this ruling not predicated upon finding wrongdoing.
The Committee motion also raises issues about the withholding records other
grounds and whether the subpoena was narrowed agreement the parties.
Since the
Committee was quite clear when invoked the jurisdiction this Court that was simply
asking for ruling the discrete question law that has now been decided, the Court will
decline interpose itself the negotiations between the parties those other issues rule questions that were not posed the complaint. See Pl. Opp. Mot. Dismiss [Dkt. 17] Once the limits and application the deliberative process privilege the context
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
the Holder Subpoena have been declared, the parties will know how proceed.
Committee has assured the Court that the past, has been willing and able accommodate
legitimate concerns about revealing law enforcement, attorney-client privileged, purely private
information and that will prepared the future. See Pl. Mem. for Mot.
Compel 22; Tr. July 30, 2015 Hearing [Dkt. 109] 28. now that the issues have
been substantially narrowed, all that left accomplish the execution familiar set
steps applying familiar set principles.
Given that backdrop, notwithstanding the
Committee insistence that the time for negotiation about these particular records has passed,
the Court encourages the parties start with fresh slate and resolve the few remaining issues
with flexibility and respect.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY October 11, 2011, the Committee issued subpoena the Attorney General calling
for documents related its investigation law enforcement initiative known Operation
Fast and Furious. The operation, launched the Bureau Alcohol, Tobacco, and Firearms ATF and the U.S. Attorney office Phoenix, Arizona 2009, sought address the
suspected illegal flow firearms from the United States drug cartels Mexico. part
the investigation, law enforcement officers allowed straw purchasers buy firearms illegally
the United States and take them into Mexico without being apprehended deliberately
permitting the guns walk order track them their destination. But after U.S. law
enforcement agent was killed December 2010 bullet fired from one these guns, the
ATF tactic came under intense scrutiny.
Congress began inquiring into Operation Fast and Furious early 2011, and February 2011, Assistant Attorney General Ronald Weich sent letter Senator Charles Grassley,
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
Ranking Minority Member the Committee the Judiciary, denying that the tactic had been
utilized that straw purchasers were permitted transport firearms into Mexico without being
interdicted. Letter from Ronald Weich Charles Grassley (Feb. 2011) [Dkt. 17-1]. Ten
months later, though, December 2011, the Deputy Attorney General officially retracted the
earlier denial and confirmed that fact, federal investigators had permitted the weapons leave
the country and enter Mexico. Letter from James Cole Darrell Issa (Dec. 2011) [Dkt. 17-2]. The Committee then expanded its investigation look into the circumstances behind
the Justice Department initial inaccurate assurances, well when and how the Department
determined that the February letter was incorrect and why took long did for Congress informed. part that effort, the Committee issued the October 11, 2011 subpoena.
The Department produced considerable volume material that was responsive the
subpoena, but withheld all records created after February 2011.
This response was not satisfactory the Committee, and the parties engaged several
months negotiations concerning the post-February documents. Ultimately, the Committee
threatened hold the Attorney General contempt Congress for withholding the records.
The Committee scheduled hearing the contempt issue for June 20, 2012, and the date
approached, additional letters were exchanged attempt avert the vote. Letter from James Cole Darrell Issa (June 11, 2012) [Dkt. 13-5]; Letter from Darrell Issa Eric
Holder, Jr. (June 13, 2012) [Dkt. 63-8] June Issa Letter Letter from Eric Holder, Jr. Darrell Issa (June 14, 2012) [Dkt. 13-4] June Holder Letter Letter from James
Cole Darrell Issa [Dkt. 13-6] (June 19, 2012) June Cole Letter This effort did not
bear fruit. June 20, 2012, the Deputy Attorney General informed the Committee that the
President had asserted executive privilege over the documents dispute internal documents
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
related the Department response Congress the grounds that their disclosure would
reveal the agency deliberative processes. June Cole Letter [Dkt. 17-3]. His letter lies
the heart this action. August 13, 2012, the Committee filed this lawsuit enforce the October 11, 2011
subpoena, Compl. [Dkt. 1], and the complaint was amended January 2013 when the
incoming 113th Congress reissued the subpoena. Am. Compl. [Dkt. 35]. September 30,
2013, the Court denied defendant motion dismiss for lack subject matter jurisdiction,
Order [Dkt. 51], and the parties subsequently filed cross-motions for summary judgment. The
Committee sought judgment the grounds that the Attorney General could not invoke
executive privilege shield records that did not involve direct communications with the
President, Pl. Summ. Mem. [Dkt. 61], and the Department took the position that the entire
set records was covered the deliberative process prong the executive privilege. Def.
Summ. Mem. [Dkt. 63]. August 20, 2014, the Court denied both motions without prejudice, holding that the
executive branch could properly invoke the deliberative process privilege response
legislative demand, but that could not unless the prerequisites for the application the
privilege had been established. Order Mot. for Summ.
The Court ordered the defense review each the withheld documents and produce
all that were not both predecisional and deliberative. Id. With respect those documents
for which claim privilege was still being asserted, the Court ordered the Department
generate detailed list identifying the author and recipient(s) and the general subject matter
the record being withheld, [and] the basis for the assertion the privilege; particular, the
decision that the deliberations contained the document precede. Id.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page November 2014, the Department produced 10,104 records that had been previously
withheld totaling 64,404 pages. also provided the detailed list the records deemed
privileged whole part after the individualized review. Pl. Notice Disputed Claims
Other Issues [Dkt. 98] December 10, 2014, produced revised list, which also
provided the Court. Not. Filing Privilege List [Dkt. 100].2 Defendant provided third
revised list plaintiff February 19, 2015, which was not filed with the Court. Pl. Reply
Def. Opp. Pl. Mot. Compel [Dkt. 106] Pl. Reply Finally, May 29, 2015,
the Department notified the Court that had re-reviewed certain material withheld from the
Committee, and transmitted final revised detailed list the Committee and the Court. Def.
Not. Subsequent Developments. [Dkt. 107].
Based the Court review defendant final revised list, which had total 17,835
entries, appears that 4082 the documents listed are duplicates wholly contained within other
documents the list, leaving 13,753 unique documents. those, approximately 3307 were
released full plaintiff. The remaining 10,446 documents were withheld whole part:
Basis for Withholding
Deliberative process privilege
Law enforcement sensitive
394 reason provided
The Court ordered the parties file notice any objections the Court making the
revised list publically available its website, Min. Order Dec. 2014, and upon receiving
none, the Court posted the list its website. See
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page January 16, 2015, plaintiff filed the instant motion compel production all the
documents the revised detailed list, and that motion has been fully briefed. Pl. Mot.
Compel [Dkt. 103] and Pl. Mem. for Mot. Compel [Dkt. 103-1]; Def. Mem. Opp.
Pl. Mot. Compel [Dkt. 104] Def. Opp. Mot. Compel Pl. Reply [Dkt. 106].
The Committee asks the Court order the Attorney General produce all the postFebruary 2011 documents that have been withheld. The Committee motion divides the
withheld materials into several categories: materials withheld under the deliberative process privilege; materials for which defendant has provided basis for the
claim privilege; materials that defendant neither produced the Committee nor
included the detailed list; and materials withheld grounds other than the deliberative
process privilege.
With respect the records the defense seeks withhold deliberative, the Committee argues
that the descriptions the log are insufficient support the invocation the privilege, the
types records described are not covered the privilege, and the qualified privilege has been
outweighed any event. The Court will address this category material which the subject the lawsuit first.
Documents withheld the basis deliberative process privilege this Court has already held, the executive privilege consists two prongs: the
Presidential communications privilege and the deliberative process privilege. While the
The Court recognizes that the motion compel was filed and briefed before defendant
produced its final revised list May 2015, the numbers documents identified based the
Court review that list not match those the motion, which was based earlier versions the list.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
Presidential communications prong the privilege may derive more protection from the
Constitution, the deliberative process privilege reaches beyond conversations with the President protect other communications among executive branch officials crucial fulfillment the
unique role and responsibilities the executive branch. Espy, 121 F.3d 736 37. This
privilege allows the government withhold documents and other materials that would reveal
advisory opinions, recommendations and deliberations comprising part process which
governmental decisions and policies are formulated. Id. 737.
For document protected the deliberative process privilege, must both
predecisional and deliberative. Id., citing Army Times Publ Co. Dep the Air Force, 998
F.2d 1067, 1070 (D.C. Cir. 1993); Wolfe Dep Health and Human Servcs., 839 F.2d 768,
774 (D.C. Cir. 1988). this case, the Court directed the Attorney General prepare
detailed list that identifies and describes the material manner sufficient enable resolution any privilege claims, including the author and recipient(s) and the general subject matter
the record being withheld, the basis for the assertion the privilege; particular, the
decision that the deliberations contained the document precede. Order Mot. for Summ. quoting Miers, 558 Supp. 107 and Fed. Civ. Proc. 45(e)(2)(A)(ii).
The Committee challenges the sufficiency the entries the list, see Pl. Mem. for
Mot. Compel 31, but the Court has reviewed the list and finds that with respect the
bulk the material being withheld deliberative, the Attorney General has specified the
grounds for the assertion the privilege with enough detail permit the Court rule the
availability the privilege legal matter. For example,
Doc. No. DOJ-FF-00003 00005, bulleted summary
ATF reports, described containing draft reforms ATF
wake Fast and Furious. Revised Detailed List (Dec.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
Doc. No. 251, DOJ-FF-00998 01001, draft email the
Mexican government regarding Fast and Furious, described
discussing proposed email Mexican government
briefings. Revised Detailed List (Dec. 2014).
Doc. No. 484, DOJ-FF-01939 01944, email discussing
scheduled meeting, described containing discussion
proposed personnel action and recommendations concerning
internal Department management. Revised Detailed List
(Dec. 2014).
The Committee real problem with the list appears its contention that the sorts
deliberations that are often described should not fall within the ambit the privilege all.
Compare Pl. Mem. for Mot. Compel (arguing that deliberations about how
respond Congress and the press are not covered the privilege) with Pl. Mem. for Mot.
Compel (providing sample descriptions that contends are insufficient involving many the same issues, including proposed changes draft letter Congress, discussing how respond quote, how communicate info Congress and public
Documents reflecting the Department internal deliberations about how
respond Congressional and media inquiries about Operation Fast and
Furious are protected the deliberative process privilege.
The deliberative documents the center this litigation concern communications within
the Department about how respond press and Congressional inquiries into Operation Fast
and Furious. its complaint and motion for summary judgment, the Committee took the
position that these materials could not lawfully withheld from the legislature because they did
not involve communications with the President, and the deliberative process privilege did not
Plaintiff also asserted that there are fifty-five documents that were withheld
deliberative process privileged defendant revised detailed list December 2014 for
which Withholding Description was provided. Pl. Mem. for Mot. Compel 25; Ex. id. Based upon the Court review the final list May 29, 2015, appears that only
document, Doc. No. 9087, remains listed deliberative process privileged with the Withholding
Description column left blank. Because defendant did not provide adequate description
why this document covered the privilege, defendant must produce plaintiff.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
have the same constitutional dimension the executive communications privilege. its order August 20, 2014, the Court held that the Attorney General could properly invoke the
deliberative process prong the executive privilege response Congressional subpoena,
but that was necessary document-by-document basis. Order Mot. for Summ.
Now the Committee contends that the documents that survived that review are not
covered the deliberative process privilege because the privilege only applies deliberations
concerning the development policy. See Pl. Mem. for Mot. Compel (asserting
that the privilege allows agency decisionmakers engage that frank exchange opinions
and recommendations necessary the formulation policy without being inhibited fear
later public disclosure and must reflect the give-and-take the deliberative process and
contain[] opinions, recommendations, advice about agency policies (emphasis added
plaintiff) (citations omitted); see also Pl. Mem. for Mot. Compel 27, quoting Pub.
Citizen, Inc. Office Mgmt. Budget, 598 F.3d 865, 875 (D.C. Cir. 2009) the extent the
documents [do not] make recommendations for policy change they are not predecisional
and deliberative despite having been produced agency that generally has advisory
role. (emphasis added plaintiff).
Notwithstanding the Committee added emphasis the word policy found selected
excerpts from opinions, the precedent that governs this Circuit does not hold that the privilege
limited deliberations concerning the formulation policy.
Given this argument, the Committee does not appear challenging the application
the privilege records that have been plainly described dealing with the development
policy, such Doc. No. bulleted summary ATF reports containing draft reforms ATF wake Fast and Furious. DOJ-FF-00003 00005, Revised Detailed List (Dec. 2014).
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
The purpose the privilege protect the decision-making process within government
agencies and encourage the frank discussion legal and policy issues ensuring that
agencies are not forced operate fishbowl. Mapother Dep Justice, F.3d 1533,
1537 (D.C. Cir. 1993), quoting Wolfe, 839 F.2d 773. The Court Appeals has applied that
privilege such mundane operational matters the selection vendor provide data
retrieval services. Mead Data Cent., Inc. U.S. Dep the Air Force, 575 F.2d 932, 935 (D.C.
Cir. 1978) While [plaintiff] correctly notes that the end product these Air Force
deliberations the [Mead Data Central] proposal not broad policy decision, that
deliberation nonetheless type decisional process that Exemption seeks protect from
undue public exposure. See also Apollo Grp., Inc. Sec. Litig., 251 F.R.D. 12,
(D.D.C. 2008) (holding that documents reflecting the Department Education review
university compliance with Title were covered the privilege and rejecting the argument
that specific policy judgment necessary for the privilege apply because the privilege
serves protect the processes which governmental decisions well policies are
The Committee cites New York Times Co. U.S. Dep Defense, 499 Supp. 501,
514 (S.D.N.Y. 2007) for the proposition that the privilege does not reach routine operating
decisions. Pl. Mem. for Mot. Compel 26, but the Mead Data opinion that has
precedential value here.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
formulated citing Espy, 121 F.3d 737 and NLRB Sears, Robuck Co., 421 U.S. 132, 150
And even one were draw distinction between operational and policy-related
matters, ICM Registry, LLC Dep Commerce, 538 Supp. 130 (D.D.C. 2008), the
district court recognized that internal deliberations about public relations efforts are not simply
routine operational decisions:
they are deliberations about policy, even they involve
massaging the agency public image. Id. 136 (holding that internal e-mails about how
present agency decision the public were covered the deliberative process privilege).
Other courts this district have reached similar conclusions. See Judicial Watch Dep
Homeland Sec., 736 Supp. 202, 208 (D.D.C 2010) (holding that documents concerning
how respond on-going inquiries from the press and Congress about the entry
government witness and Mexican national into the United States fell under the deliberative
process privilege); Citizens for Responsibility Ethics Wash. U.S. Dep Labor, 478
Supp. 77, (D.D.C. 2007) (finding that deliberative process privilege covered email
messages discussing the agency response news article); Judicial Watch, Inc. Reno, No.
00-0723, 2001 1902811 (D.D.C. Mar. 30, 2001), (holding that deliberations about
Even the cases the Committee cites indicate that the privilege covers agency deliberations
about decisions, well the formulation policy positions. Taxation with Representation
Fund IRS, 646 F.2d 666, 677 (D.C. Cir. 1981), the Court stated, the privilege protects
documents reflecting advisory opinions, recommendations, and deliberations comprising part process which governmental decisions and policies are formulated See also Paisley
CIA, 712 F.2d 686, 698 (D.C. Cir. 1983), vacated other grounds, 724 F.2d 201 (D.C. Cir.
1984) (holding that analyzing whether materials are protected from disclosure under
Exemption FOIA which protects materials covered the deliberative process privilege court must first able pinpoint agency decision policy which these documents
contributed, and stating that the decision whether prosecute individual the type
decision protected the privilege).
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
how handle press inquiries and other public relations issues are covered Exemption
under FOIA).
Following the same reasoning, the Court holds that documents withheld defendant that
reveal the Department internal deliberations about how respond press and Congressional
inquiries into Operation Fast and Furious are protected the deliberative process privilege.
Plaintiff need for the withheld documents outweighs the concerns that
underlie the privilege this case because the substance these internal
deliberations has already been made public. August 20, 2014, the Court ruled the central issue was asked address this
lawsuit: are internal agency documents that not involve communications with the President
covered the executive privilege? The answer was yes, the documents are both deliberative
and pre-decisional. And the Court has now ruled the subsidiary issue was subsequently
asked address: does that deliberative process prong the executive privilege extend cover
internal discussions about communications with Congress the press? The answer that
question yes well.
The decision that these withheld documents are privileged just the first step twostep analysis, though, because the law clear that the deliberative process privilege qualified
one. Espy, 121 F.3d 737.
[C]ourts must balance the public interests stake determining
whether the privilege should yield particular case, and must
specifically consider the need the party seeking privileged
Id. 746. Waters U.S. Capitol Police Bd., 218 F.R.D. 323, 324 (D.D.C. 2003), Magistrate
Judge determined that document about particular investigation rather than the adoption
policy that applies all cases particular nature type not covered the privilege, but
this Court not bound follow that opinion, which not directly point any event.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
Therefore, the question whether the privilege has been outweighed essential
aspect the legal analysis the Court agreed undertake, and this second step involves
determining whether plaintiff need for the documents outweighs the defendant need
protect them. resolve this question, the Court must balance the competing interests
flexible, case case, hoc basis, considering such factors the relevance the evidence, the
availability other evidence, the seriousness the litigation investigation, the harm that
could flow from disclosure, the possibility future timidity government employees, and
whether there reason believe that the documents would shed light government
misconduct, all through the lens what would advance the public well the parties
interests. Id. 737 38.
One factor the Espy opinion directs the balancing judge consider whether the
government party the litigation, id. 746, and this case, the government both
sides the dispute. Under those circumstances, the necessary hoc balancing could give
rise the very concerns that prompted the Attorney General argue that the case should
dismissed prudential grounds and the Ranking Member the Committee and other
representatives file amicus brief support the motion. Mem. Amici Curiae
(arguing that this case implicates considerations self-protection that are among the most
important reasons for the rules judicial restraint discussed above enable courts resist
being enlisted one branch pawn political fights
The Court mindful the principles that caution against judicial intervention
dispute between the other two branches, and recognizes that those principles derive from the
balance separate powers carefully enunciated the Constitution. See Allen Wright, 468
U.S. 737, 752 (1984), abrogated other grounds, Lexmark Int Inc. Static Control
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
Components, Inc., 134 Ct. 1377 (2014) federal courts may exercise power only the last
resort and only when adjudication consistent with system separated powers and [the
dispute one] traditionally thought capable resolution through the judicial process
(internal quotation marks omitted). But the unique situation presented here, the Court can
decide this issue based undisputed facts, without intruding upon legislative executive
prerogatives and without engaging what could otherwise become troubling assessment the
relative merit and weight the interests being asserted the either party.
Looking the Espy factors, the Court first observes that the Attorney General has
repeatedly firmly acknowledged the seriousness and legitimacy the Committee
investigation. See, e.g., Reply Supp. Def. Mot. Dismiss [Dkt. 27] The
Department has never taken the position that the Committee lacks the authority investigate Mem. Supp. Def. Mot. Dismiss [Dkt. 13-1] Ordinarily, the
Department does not provide Congress internal Executive Branch materials generated the
course responding congressional inquiry. But light the acknowledged inaccuracies the February Letter, the Department made rare exception its recognized protocols
The Department thereby gave the committee unprecedented access deliberative materials
reflecting how the letter came drafted. (internal quotations omitted). And the defense
acknowledged the relevance the materials sought here when emphasized the Court that
given the importance the issues stake, the Department had asked its Inspector General
review the same records order answer the same questions. See Mem. Supp. Def.
Mot. Dismiss 10.
With respect the harm that could flow from disclosure, the Department has explained
that the privilege was invoked because the release deliberative records concerning
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
communications with Congress would cause significant damage. particular, would inhibit
the candor such Executive Branch deliberations the future and significantly impair the
Executive Branch ability respond independently and effectively congressional
oversight. Mem. Supp. Def. Mot. Dismiss 16, quoting Letter from Eric Holder,
Jr. the President (June 19, 2012) June Holder Letter The law recognizes the
legitimacy those concerns, and the principle that the Department sought vindicate protect
its deliberations the future has been upheld this opinion and the Court previous rulings.
But the Court notes that this case, the Department has pointed repeatedly the
existence and thoroughness the Inspector General investigation. See Mem. Supp. Def.
Mot. Dismiss (stating that the [t]he Report provides extensive description
the very events that the Committee has pursued here, the Department responses Congress they related the disputed statements the February letter, and the withdrawal the
February letter Reply Supp. Def. Mot. Dismiss [Dkt. 27] the report
has changed the landscape, releasing vast amount information and id. (the report
and the release related documents comprehensively addressed the Department response
congressional inquiries While the Department outlined these circumstances part the its
effort persuade the Court stay its hand altogether, and they relate somewhat the Espy
The letter not attached defendant motion dismiss, but copy available
plaintiff website
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
factor whether the information can obtained elsewhere, the end, they serve persuade
the Court that whatever incremental harm that could flow from providing the Committee with the
records that have already been publicly disclosed outweighed the unchallenged need for the
What harm the interests advanced the privilege would flow from the transfer the
specific records sought here the Committee when the Department has already elected
release detailed Inspector General report that quotes liberally from the same records? See
Report 329 417; see also Reply Supp. Def. Mot. Dismiss (stating that the
Report discloses vast amounts information that the Committee purported seek its
Complaint The Department has already laid bare the records its internal deliberations and
even published portions interviews revealing its officials thoughts and impressions about
those records. While the defense has succeeded making its case for the general legal principle
that deliberative materials including the sorts materials issue here deserve protection
even the face Congressional subpoena, can point particular harm that could flow
from compliance with this subpoena, for these records, that did not already bring about itself.
Also, this particular case, prudent for the Court resolve the matter given the
failure the negotiation and accommodation process with respect this particular issue date.
The parties have been wrangling over the applicability the deliberative process privilege since
The existence the report does not necessarily establish that the evidence sought can obtained elsewhere, because the report described the emails and internal documents and
quoted them part, but the source materials were not attached the published report.
According defendant, though, the documents referenced the report were provided the
Committee, Mem. Supp. Def. Mot. Dismiss 18, and that circumstance undermines
the Committee repeated assertions that the Department has been engaged wrongful
exercise conceal the truth. But given the fact that through the report, the barn door these
issues has been thrown wide open, why should Congress, pursuing legitimate
investigation, limited the records selected the Inspector General for inclusion his
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
2011, and the Court took the extraordinary step delaying its proceedings twice refer the
matter senior U.S. District Judge assist the process, but those efforts did not succeed.
So, under the specific and unique circumstances this case, the Court finds that the
qualified privilege invoked shield material that the Department has already disclosed has been
outweighed legitimate need that the Department does not dispute, and therefore, the records
must produced. This ruling not predicated finding that the withholding was intended cloak wrongdoing the part government officials that the withholding itself was
Withholdings and redactions for which defendant asserted basis for its claim privilege
There are three smaller sets records that present other concerns. First, the Committee
complains that defendant has withheld several documents without identifying any grounds for
the claim privilege that is, the Withholding Basis column the detailed list was left
blank. Pl. Mem. for Mot. Compel According plaintiff, the revised detailed list
December 2014 included 380 these entries. Id. Ex. id. The Court review the
final revised detailed list May 29, 2015 excluding duplicate documents and documents
released full identified eight documents for which the Withholding Basis column remains
DOJ-FF-03842 DOJ-FF-03844
DOJ-FF-25558 DOJ-FF-25558
DOJ-FF-25561 DOJ-FF-25561
DOJ-FF-26927 DOJ-FF-26927
DOJ-FF-29733 DOJ-FF-29736
DOJ-FF-29766 DOJ-FF-29769
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
DOJ-FF-37439 DOJ-FF-37441
DOJ-FF-60507 DOJ-FF-60507.012
These records must produced.
The Court ordered defendant prepare detailed list that would identif[y] and
describe[] the material manner sufficient enable resolution any privilege claims.
Order Mot. for Summ. [Dkt. 81] quoting Miers, 558 Supp. 107; see also Fed. Civ. Proc. 45(e)(2)(A)(ii). Failure provide any grounds for withholding particular records
does not comply with the order enable the Court resolve defendant privilege claims
those documents.
Accordingly, defendant must produce the material withheld without any
proffered justification.
Documents that defendant did not produce originally and did not include the
detailed list its motion, the Committee asks the Court compel defendant produce all the
responsive records its possession dated after February 2011, including records that were not
described defendant detailed list documents covered the deliberative process privilege.
Pl. Mem. for Mot. Compel The Department explains that the documents did not
include the list are those that the Committee took off the table 2012 when the parties were
attempting negotiate resolution the looming contempt proceedings. Def. Opp. Mot.
Compel [Dkt. 104] 45. According defendant, the Committee agreed narrow the
scope the subpoena that time, when the President asserted the executive privilege June 2012, his action covered only the set materials that was still issue. Thus, defendant
argues, any other records are not the subject this lawsuit challenging that assertion the
privilege. See id. 38.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
The Committee takes the position that any accommodations were simply offers that were
rejected the Attorney General, and that this action enforce valid subpoena covers all
records responsive that subpoena. Pl. Mem. for Mot. Compel
Both parties point series communications the spring 2012 support their
positions. May 2012, Committee Chairman Darrell Issa reminded the rest the
Committee that when the Committee issued the subpoena for Justice Department documents,
the Committee specified categories documents required the Department produce.
Mem. from Darrell Issa Members, Committee Oversight and Government Reform (May 2012) May Issa Mem. then reported:
[S]ome important areas remain cloaked secrecy:
How did the Justice Department finally come the conclusion
that Operation Fast and Furious was fundamentally
What senior officials the Department Justice were told
about approved the controversial gunwalking tactics that
were the core the operation strategy?
How did inter-agency cooperation nationally designated
Strike Force fail miserably Operation Fast and Furious?
May Issa Mem.
After further negotiations, Speaker the House Rep. John Boehner wrote letter the
Attorney General stating that although the Department had provided some documents
response the subpoena, two key questions remain unanswered: first, who your leadership
team was informed the reckless tactics used and, second, did your leadership team mislead
This document available
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page misinform Congress response Congressional subpoena? Letter from John Boehner
Eric Holder, Jr. (May 18, 2012) [Dkt. 63-9] May Boehner Letter June 13, 2012, the Committee wrote the Attorney General:
[A] May 2012, Committee memo identified three categories
documents necessary for Congress complete its investigation
into Operation Fast and Furious. May 18, House leaders and
narrowed this request two categories: (1) information showing
the involvement senior officials during Operations Fast and
Furious, and (2) documents from after February 2011, related
the Department response Congress and whistleblower
[O]n Monday, June 11, the Committee further narrowed the focus what the Justice Department needs produce avoid
contempt. This further accommodation focused the
aforementioned relevant materials created after February 2011
after Operation Fast and Furious ended. This accommodation
the Committee effectively eliminated the dispute over information
gathered during the criminal investigation Operation Fast and
Furious Despite this proposed compromise the
Committee, the Department has not indicated willingness
accept these terms.
June Issa Letter [Dkt. 63-8]. June 14, 2012, the Attorney General responded the Committee, expressing
appreciat[ion] that the Committee has narrowed its request for information related its review Operation Fast and Furious and now longer seeks sensitive law enforcement information
arising out that investigation. June Holder Letter [Dkt. 13-4]
The parties met June 19, 2012 but failed resolve the impasse. See June Cole
Letter [Dkt. 13-6]
According defendant, this accommodation eliminated plaintiff demand for
information about how the inter-agency task force failed. Def. Opp. Mot. Compel
37, quoting H.R. REP. NO. 112-546, accommodation the Department, the letter
offered narrow the scope documents the Department needed provide order avoid
contempt proceedings.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
That same day, the Attorney General wrote letter the President about the matter.
The Committee has made clear that its contempt resolution will limited internal
Department documents from after February 2011, related the Department response
Congress. June Holder Letter, quoting June Issa Letter asked the President assert executive privilege over these documents. Id. (emphasis added). They were not
generated the course the conduct Fast and Furious. Instead, they were created the
course the Department deliberative process concerning how respond congressional and
related media inquiries into that operation. Id. June 20, 2012, Deputy Attorney General Cole advised the Committee the
President decision the Attorney General request: write now inform you that the
President has asserted executive privilege over the relevant post-February 2011, documents.
June Cole Letter [Dkt. 17-3]
According defendant, the parties negotiations left issue only the documents the
Department refuse[d] produce the grounds that they reflect internal Department
deliberations. Def. Opp. Mot. Compel 29, quoting June Issa Letter. appears,
the complaint alleges and the records reflect, that was this narrowed set that was submitted
the President for his consideration, and that the President assertion executive privilege
related those particular deliberative materials. See Am. Compl. 15. And also appears
from the correspondence that the focus the Committee inquiry became more sharply defined
over time. But not clear from review the communications that the parties agreed that the
Committee would forego any interest the broader universe responsive records for all time
since there was meeting the minds. Yes, the Committee offered take several categories documents off the table, and yes, the Chairman said that this effectively eliminated the
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
dispute over records created during the ongoing law enforcement operation, but appears that
those offers were made the context negotiation, return for something the Committee
never received. any event, the Court not obligated unravel all the threads that have become
tangled this dispute, and would not prudent for so. not necessary decide
which the parties unduly argumentative pleadings which rely heavily their own selfserving correspondence characterizes the state the negotiations more accurately. And the
Court does not need define the scope the post-February subset, term apparently
coined the Committee and used the complaint but none the previous correspondence,
the Executive Privilege Set, term put forward counsel for the Department. See Pl. Reply
[Dkt. 106] and 14. the end, the Court did not and should not accept
assignment supervise the entire contentious relationship between these parties. took
jurisdiction over the single, legal issue presented the complaint, and what the lawsuit about clear.
The lawsuit challenged the Attorney General withholding documents the grounds executive privilege, and the correspondence reveals that the President asserted executive
privilege over the same records underlying the Committee decision hold the Attorney
General contempt:
those related the Department response the congressional
investigation into Operation Fast and Furious. See also Am. Compl. 15.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page the Committee explained both the amended complaint and its opposition the
defendant original motion dismiss:
The Committee legally entitled all documents responsive
the Holder Subpoena that have not been produced. Nevertheless, this action, the Committee seeks enforce that subpoena only subset post-February 2011 responsive documents (the
Post-February Subset, Compl. 62). That subset particularly
relevant the Committee efforts determine whether DOJ
deliberately attempted obstruct the Committee investigation
by, among other things, lying the Committee otherwise
providing with false information.
The principal legal issue presented this case whether the
Attorney General may withhold this responsive subset the basis the President assertion Executive privilege over internal
agency documents that reflect advice communications
with him.
Pl. Opp. Def. Mot. Dismiss [Dkt. 17] Indeed, the Committee urged the Court
exercise jurisdiction resolve the case precisely because presented such narrow,
quintessentially legal question:
The dispute here revolves around the applicability the
deliberative process privilege which the Attorney General casts form Executive privilege congressional subpoena.
determining (i) whether this privilege may validly asserted
response the Holder Subpoena, and (ii) whether the Attorney
General failure produce the Committee the Post-February
Subset documents without legal justification and violates his
legal obligations the Committee, see Compl. 81, the Court
definitively will resolve the controversy between the parties
Am. Compl. Introduction While the Committee entitled all documents
responsive the Holder Subpoena that have not been produced, the Committee seeks this
action enforce the Holder Subpoena only limited subset responsive documents,
namely those documents relevant the Department efforts obstruct the Committee
investigation. The principal legal issue presented here whether the Attorney General may
withhold that limited subset the basis Executive privilege where there has been
suggestion that the documents issue implicate otherwise involve any advice the
President, and where the Department actions not involve core constitutional functions the
President. see also Am. Compl. 67.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
Once the limits and application the deliberative process
privilege the context the Holder Subpoena have been
declared, the parties will know how proceed.
Id. 44.
According the Committee, then, this Court work done, and the Court agrees.
What the Court undertook address whether the Attorney General could lawfully
withhold those responsive documents dated after February over which the executive had
asserted the deliberative process privilege. August 20, 2014, the Court answered the primary
legal question and ruled that that the deliberative process privilege was legitimate prong the
constitutionally-based executive privilege that could validly asserted response
Congressional subpoena shield records long they were both deliberative and
predecisional. Order Mot. for Summ. [Dkt. 81]. The Court went further today and
answered the remaining subsidiary legal question: whether internal deliberations concerning
communications with the press and Congress fell within the scope the privilege.
The Court has already ordered that any records that were withheld June 20, 2012 but
were not both deliberative and predecisional had produced, Order Mot. for Summ. and, applying the Espy factors, has ordered today that even the privileged, deliberative
records related how the Department would respond congressional and related media
inquiries into Operation Fast and Furious must also produced. But any responsive documents
that were not embraced that privilege assertion are entirely separate matter, and
intervention that dispute would entangle the Court ongoing political dispute the sort
that not suitable judicial resolution. See Allen, 468 U.S. 752; see also Baker Carr, 369
U.S. 186, 217 (1962); United States ATT, 551 384, 390 (D.C. Cir. 1976). The
unresolved legal issue that posed the primary impediment negotiated solution has been
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
alleviated, and the process negotiation and accommodation has not been exhausted with
respect any the other issues.
Documents and redactions withheld basis other than the deliberative process
Plaintiff also asserts that defendant must ordered produce any documents that were
either redacted withheld their entirety for reasons other than the deliberative process
privilege, Pl. Mem. for Mot. Compel which defendant withheld because they
contained certain law enforcement sensitive material, records implicating sensitive foreign
policy concerns, attorney-client privileged information, material protected the attorney work
product doctrine, and personal privacy information. Def. Opp. Mot. Compel 28.
These issues are best left the process negotiation and accommodation well.
The Committee takes the position that these privileges have been waived since the
defense has never asserted them this litigation. Pl. Mem. for Mot. Compel 14; Pl.
Reply 11. While both parties made clear that the litigation was about the scope the
deliberative process privilege, and defendant formally eschewed any reliance the Presidential
communications privilege, Joint Status Report [Dkt. 32] has not been established that
the Department waived its right rely the other grounds ordinarily does response
Congressional subpoenas. See Letter from James Cole Darrell Issa (May 15, 2012)
[Dkt. 63-3] (explaining why law enforcement sensitive information was redacted from
document productions); Letter from Ronald Weich Darrell Issa (Apr. 19, 2012) (requesting
that the Committee refrain from contacting subpoenaing cooperating and other witnesses
indicted federal criminal cases part its investigation Operation Fast and Furious while the
criminal matters remain pending),
April-19-2011-Weich-to-Issa.pdf; see also Mem. Amici Curiae [Dkt. 30].
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
Indeed, oral argument, counsel for the Committee acknowledged that these are
privileges that are regularly respected legislative requests for information matter
comity. But took the position that the Committee does not have sufficient trust the
Department Justice take the Department word [redactions]. Tr. July 30, 2015
Hearing [Dkt. 109] 49. The legitimacy these privileges not issue that was presented the complaint, and prudential concerns dictate that these questions are more appropriately
resolved the parties the first instance. for whether the redactions are what they purport be, the Court notes that counsel for even the most disputatious parties are often called upon
trust each other, and that the judiciary relies regularly declarations the executive branch
that matters redacted from FOIA productions are what they are described the Vaughn
index. See Loving U.S. Dep Def., 550 F.3d 32, (D.C. Cir. 2008) (holding that district
court had not abused its discretion relying agency Vaughn index and declaration
determining whether disputed document contained segregable portions); Judicial Watch, Inc.
Consumer Fin. Prot. Bureau, Supp. (D.D.C. 2014) The reviewing court may
rely the description the withheld records set forth the Vaughn index and the agency
declaration that released all segregable information. The Court has been provided with
reason believe that its assistance needed verify for counsel for one branch government
assertions made pleadings officer the court representing another, equal branch
government. the end, neutral required read each individual redaction and confirm
that what the Department claims simply name telephone number fact name
telephone number, the parties can arrange for that their own.
Case 1:12-cv-01332-ABJ Document 117 Filed 01/19/16 Page
For the reasons stated above, ORDERED that plaintiff motion compel [Dkt. 103] GRANTED insofar calls for the production documents responsive the
October 11, 2011 subpoena that concern the Department Justice response congressional
and media inquiries into Operation Fast and Furious which were withheld deliberative process
privilege grounds, and GRANTED with respect the nine documents for which
justification for the invocation the privilege has been provided: document numbers 9087, 883,
6592, 6594, 7038, 7987, 8002, 9685, and 14768. all other respects, DENIED. Records
subject this order shall produced plaintiff February 2016. further ORDERED that February 2016, defendant shall produce plaintiff all
segregable portions any records withheld full part the grounds that they contain
attorney-client privileged material, attorney work product, private information, law enforcement
sensitive material, foreign policy sensitive material.
Whether any additional records
portions records are produced matter resolved between the parties themselves.
Finally, further ORDERED that the parties shall file notice February 2016
setting forth their joint position (or separate positions they cannot agree) whether, light
this order resolving all the pending issues the case, the case should now dismissed
moot, and not, how the Court should proceed. ORDERED.
United States District Judge
DATE: January 19, 2016