Skip to content

Get Judicial Watch Updates!


Judicial Watch • LavenderLaw



Page 1: LavenderLaw


Number of Pages:12

Date Created:May 12, 2014

Date Uploaded to the Library:May 19, 2014


File Scanned for Malware

Donate now to keep these documents public!

See Generated Text   ∨

Autogenerated text from PDF

 Plaintiff, Civil Action No. 13-0949 (ESH)   
 Judicial Watch, Inc., brings this action against the United States Department Justice (DOJ) under the Freedom Information Act (FOIA), U.S.C.  552, seq. response FOIA request made plaintiff, defendant produced some documents full, but withheld and redacted others pursuant FOIA Exemptions and  (Def.s Mot. for Summ. (Def.s Mot.), Feb. 10, 2014 [ECF No. 10], 1-2.)  Plaintiff concedes that the search for responsive documents was reasonable and that the majority defendants withholdings and redactions were justified.  (Pl.s Cross-Mot. for Partial Summ. (Pl.s Mot.), Mar. 2014 [ECF No. 12], 4.)  Plaintiff, however, challenges the redaction e-mails discussing the drafting the Attorney Generals speech which discuss/infer the sexual orientation certain Department employees under Exemption (Id.)  Presently before the Court are the parties cross-motions for summary judgment.  Based consideration the pleadings, camera review the e-mails issue, and the relevant case law, the Court will grant defendants motion and deny plaintiffs motion. 
BACKGROUND August 27, 2012, Judicial Watch submitted FOIA request the DOJ Office Information Policy (OIP) seeking records related the National LGBT (Lesbian, Gay, Bisexual, and Transgender) Bar Associations 2012 Lavender Law Conference and Career Fair which the Attorney General spoke.  (Statement Material Facts Which There Genuine Dispute (SUMF), Feb. 10, 2014 [ECF No. 10],  1.)   When Judicial Watch failed receive response from the government March 18, 2013, sent e-mail demanding that the requested records provided without delay. (Pl.s Mot. 2.)  DOJ responded e-mail informing Judicial Watch that the search for responsive documents had been completed and that OIP was the process reviewing these documents.  Judicial Watch then filed administrative appeal March 21, 2013, and this lawsuit June 21, 2013. (Id. 2-3.)  OIP responded plaintiffs FOIA request December 17, 2013. (SUMF  3.) the two hundred and thirty-five pages responsive documents identified OIP, released one hundred and sixty-six pages redacted form, withheld sixty-six pages full, referred two pages the Community Relations Service (ultimately released full), and referred one page the Tax Division (ultimately released redacted form). (Id.  3-5.) 
 Along with its motion for summary judgment, defendant filed sworn declaration from Vanessa Brinkmann, Senior Counsel OIP, detailing the process that OIP used search for responsive documents and outlining the ten categories withheld and/or redacted documents. (Declaration Vanessa Brown (Brown Decl.), Feb. 10, 2014 [ECF No. 10-1].)   These categories included: 
 Exemption (5)-(1): e-mails deliberating the timing announcement regarding the Attorney Generals participation the conference; 

 Exemption (5)-(2):  e-mails discussing the drafting the Attorney Generals speech; 

 Exemption (5)-(3): drafts the Attorney Generals speech with substantive revisions that were substantially different from the final version the Attorney Generals remarks before the Lavender Law Conference and Career Fair; 

 Exemption (5)-(4): briefing material, including talking points, prepared for the Attorney General regarding hate crimes prevention; 

 Exemption (6)-(1): the e-mail address the Attorney General; 

 Exemption (6)-(2): the cell phone numbers third parties associated with LGBT organization; 

 Exemption (6)-(3): the cell phone and home numbers and personal e-mail addresses various employees the Departments Justice and Homeland Security; 

 Exemption (6)-(4): e-mails discussing the drafting the Attorney Generals speech which discuss/infer the sexual orientation certain Department employees; 

 Exemption (6)-(5): e-mails discussing the personal travel Department employee; and 

 Exemption (6)-(6): e-mails among Department employees, including personal commentary and discussions among colleagues inferring the sexual orientation some Department employees who would involved the conference. 

(Id.  19-21.) footnote her affidavit, Ms. Brinkmann explained that portions the two pages e-mails redacted pursuant Exemption (5)-(2) also [had] been protected Exemption 6[-(4)]. (Id.  9.) second footnote, she explained that [t]he deliberative information category [(6)-(4)] has also been protected Exemption 5[, s]ee category (b)(5)-(2). (Id.  n.11.) 
 Plaintiff does not challenge either the adequacy defendants search the redactions and withholdings made pursuant nine the ten categories described above. (Pl.s Mot. 4.)  Plaintiff challenges only the withholding portions documents under Exemption (6)-(4).  Though plaintiff acknowledges that not requesting the names the individuals referenced these documents, contends that entitled the release all other portions these e-mails which DOJ employees discuss the sexual orientation other employees. (Id.) 
 Defendant argues that entitled summary judgment two independent grounds.  (See Def.s Reply Pl.s Opp. Def.s Mot. for Summ. Opp. Pl.s Cross Mot. for Summ. (Def.s Opp.), Mar. 19, 2014 [ECF No. 13], 1.)  First, argues that the requested information Exemption (6)-(4) w[as] also withheld part pursuant Exemption category [Exemption] (b)(5)-(2). (Id. 2.)  Second, argues that parts the documents issue were justifiably withheld under Exemption because they allude[] the sexual preference very small number individuals whose identities are readily identifiable the specific context the deliberations, and the redaction names and/or their job titles would not protect their identities. (Id. 4.).  Plaintiff cross-moves for partial summary judgment the grounds that (1) defendant failed allege that Exemption applies the e-mails timely fashion and (2) privacy interests exist which overcome the public interest the release discussions DOJ employees other employees sexual orientation [which] constitute puerile behavior government employees and the disclosure government officials attempts apply stereotypes and speculate their colleagues sexual orientation. (See Pl.s Mot. Pl.s Reply Support Its Cross-Mot. for Partial Summ. (Pl.s Reply), Apr. 2014 [ECF No. 15], 2-3.) April 18, 2014, the Court issued Order directing defendant produce the contested document for camera inspection the Court. 
The Court may grant summary judgment if the pleadings, the discovery and disclosure materials file, and any affidavits show that there genuine issue any material fact and that the movant entitled judgment matter law.  Fed. Civ. 56(c). The moving party bears the burden demonstrating absence genuine issue material fact dispute.  Celotex Corp. Catrett, 477 U.S. 317, 322 (1986).  Factual assertions the moving partys affidavits may accepted true unless the opposing party submits his own affidavits declarations documentary evidence the contrary.  Neal Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).  
FOIA cases typically and appropriately are decided motions for summary judgment. Defenders Wildlife U.S. Border Patrol, 623 Supp. 83, (D.D.C. 2009) (citations omitted). In FOIA case, summary judgment may granted the government the agency proves that has fully discharged its obligations under the FOIA, after the underlying facts and the inferences drawn from them are construed the light most favorable the FOIA requester. Fischer U.S. Dept Justice, 596 Supp. 34, (D.D.C. 2009) (quoting Greenberg U.S. Dept Treasury, Supp. (D.D.C. 1998)). An agency that has withheld responsive documents pursuant FOIA exemption can carry its burden prove the applicability the claimed exemption affidavit. Larson Dept State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citing Ctr. for Natl Sec. Studies U.S. Dept Justice, 331 F.3d 918, 926 (D.C. Cir. 2003)). Summary judgment warranted the basis agency affidavits when the affidavits describe 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. Larson, 565 F.3d 862 (quoting Miller Audit Project Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).  Finally, an agencys justification for invoking FOIA exemption sufficient appears logical plausible.  Larson, 565 F.3d 862 (quoting Wolf CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)). 
 Defendant first argues that properly withheld parts the disputed e-mail chain pursuant the deliberative process privilege embodied Exemption (See Def.s Opp. 2.)  This privilege extends intra- and inter-agency documents that are both predecisional and deliberative nature.  See Mapother Dept Justice, F.3d 1533, 1537 (D.C. Cir. 1993).  This category documents includes advisory opinions, recommendations and deliberations comprising part the process which governmental decisions and policies are formulated. Loving Dept Defense, 550 F.3d 32, (D.C. Cir. 2008) (citing Dept Interior Klamath Water Users Protective Assn, 552 U.S. (2001)).  Such documents are protected because [Congress] determined that disclosure material that both predecisional and deliberative does harm [to] agencys decisionmaking process. McKinley Bd. Gov. Fed. Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011) (emphasis original). 
 Plaintiff responds that defendant failed raise this exemption timely fashion, and therefore, [a]ny argument that Exemption applies the requested records has been waived. (Def.s Reply 2.) plaintiffs view, specifically challenges those redactions made under Exemption (6)-(4) and the government may not simply rely cross-reference Exemption mere footnote supporting affidavit attached its summary judgment motion. (Id.)  Defendant argues, the other hand, that the footnotes the Brinkmann declaration demonstrate that parts the e-mails are protected under both Exemption (6)-(4) and Exemption (5)-(2).demonstrate that parts the e-mails are protected under both Exemption (6)-(4) and Exemption (5)-(2).demonstrate that parts the e-mails are protected under both Exemption (6)-(4) and Exemption (5)-(2). Based its camera review, the Court can confirm that the only document redacted pursuant Exemption (6)-(4) the document expressly identified category Exemption (5)-(2) the Brinkmann Declaration paragraph 19. (See also Pl.s Mot. (arguing that parts these e-mails were withheld because the authors these e-mails are providing opinions and debating the best way about making suggested revisions and/or deciding courses action that are still under consideration).) sure, the Court Appeals has plainly and repeatedly told the government that, general rule, must assert all exemptions the same time, the original district court proceedings. Maydak U.S. Dept Justice, 218 F.3d 760, 764-65 (D.C. Cir. 2000) (collecting cases).  Here, the disputed issue somewhat differentwhether sufficient for defendant raise the objection the supporting sworn declaration and not within the four corners the motion itself.  The Court believes that is.  The Court Appeals has routinely recognized that summary judgment may granted FOIA cases solely based the information provided affidavits sworn declarations submitted the agency.  See Am. Civil Liberties Union, 628 F.3d 612, 619 (D.C. Cir. 2011) (An agency withholding responsive documents from FOIA release bears the burden proving the applicability claimed exemptions [and t]ypically does affidavit.) (emphasis added); Campbell U.S. Dept Justice, 164 F.3d 20, (D.C. Cir. 1998) (To justify summary judgment, declaration must provide detailed and specific information demonstrating that material withheld logically within the domain the exemption claimed.) (emphasis added) (internal citations and quotation marks omitted).  Therefore, while the government certainly could have been clearer claiming that both Exemption (5)-(2) and Exemption (6)-(4) applied the two-page e-mail chain issue this case, and could have referenced the relevant footnotes from the Brinkmann Declaration its summary judgment motion, its failure not fatal.  Raising the issue the affidavit and discussing Exemption (5)-(2) the summary judgment motion sufficiently illsutrate defendants reliance Exemption for redacting parts the relevant e-mail chain its original proceeding within the meaning Maydak. This conclusion bolstered the fact that the two policy goals that support the requirement that the government raise the exemptions upon which seeks rely the the original district court proceeding are: (1) the interest judicial finality and economy, which has special force the FOIA context, because the statutory goalsefficient, prompt, and full disclosure informationcan frustrated agency actions that operate delay the ultimate resolution the disclosure request, and (2)  preventing the government from playing cat and mouse withholding its most powerful cannon until after the [d]istrict [c]ourt has decided the case and then springing surprised opponents and the judge. Stonehill I.R.S., 558 F.3d 534, 538 (D.C. Cir. 2009) (internal citations and quotation marks omitted).  The presence the footnotes the Brinkmann Declaration, well the legal discussion regarding the deliberative process privilege the summary judgment motion, provided sufficient notice the plaintiff that the disputed documents were protected under both Exemption (5)-(2) and Exemption (6)-(4).  This case does not present any sort gamesmanship the government, but rather, most lack precision. 
Plaintiff next argues footnote its own that [e]ven Exemption had not been waived, the Court concludes, it would truly novel argument that the deliberative process privilege applies government employees speculation about their colleagues sexual orientation. (Pl.s Reply n.1.)  Yet, this argument equally unconvincing.  Contrary plaintiffs assertion, the governments justification for withholding parts the e-mail chain under Exemption not based the content the e-mails, but rather based the context which the comments were made. Ms. Brinkmanns supporting declaration and the defendants motion for summary judgment explain, [t]hese exchanges reflect the various stages the decisionmaking process [and i]f such communications are made public, Department employees will much more circumspect their discussions .  (Brinkmann Decl.  27; Def.s Mot. 22.) Plaintiff has presented neither contrary evidence the record nor evidence bad faith that the redacted information logically falls within the claimed exemption . and therefore has failed withstand its burden defendants motion for summary judgment.  See Larson, 565 F.3d 862 (quoting Miller, 730 F.2d 776).    
 For these reasons, the Court satisfied that defendant timely raised its reliance Exemption Moreover, camera review the e-mail chain issue confirms that any redactions made based the deliberative process privilege were justified.  Therefore, the Court will grant defendants motion and deny plaintiffs motion. 
 For the reasons set forth above, the Court satisfied that parts the e-mails issue were properly withheld pursuant Exemption  But, even Exemption had not been properly invoked, the Court would reach the same conclusion under Exemption  Exemption specifically protects against the disclosure personnel and medical files and similar files the disclosure which would constitute clearly unwarranted invasion personal privacy. U.S.C.  552(b)(6).  The D.C. Circuit has interpreted this exemption broadly exempt not just files, but also bits personal information such names and addresses, the release which would create[] palpable threat privacy. Judicial Watch, Inc. FDA, 449 141, 152-53 (D.C. Cir. 2006) (citing Carter U.S. Dept Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987)).  Where requested record may subject Exemption the Court must determine whether the document may withheld weigh[ing] the privacy interest non-disclosure against the public interest the release records order determine whether, balance, the disclosure would work clearly unwarranted invasion personal privacy. Lepelletier FDIC, 164 F.3d 37, (D.C. Cir. 1999) (quoting Natl Assn Retired Fed. Emps. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989)). 
 Plaintiff argues that because not seeking the release the names the employees whose sexual orientation was being discussed, privacy interest exists that would justify the withholding other contents the e-mail chain question.  Moreover, assuming there was somehow privacy interest the e-mails, plaintiff contends that the public interest would outweigh any privacy interest because the discussion DOJ employees sexual orientation constitute[s] puerile behavior government employees about which the public has the right know and because there significant public interest [that] exists the disclosure government officials attempts apply stereotypes and speculate their colleagues sexual orientation. (Pl.s Mot. Reply 3.)  Defendant responds that redacting the names the employees, while generally sufficient protect the privacy government employees, does not enough protect the identity the individuals this case because the e-mails allude[] the sexual preference very small number individuals whose identities are readily identifiable the specific context the deliberations [t]hus the e-mails their face would identify the individuals even with the redaction names/and their job titles . (Def.s Opp. 4.) 
 The Court agrees with the defendant.  Where information exists such that the release certain portions [documents], even with the names redacted, could easily lead the revelation the documents their entirety, including the identity the [individuals] involved, proper withhold these documents creates palpable threat privacy.  Carter U.S. Dept Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987).  Based its camera review the e-mails, the Court agrees with the agencys determination that based the very small number individuals that are referenced, their identitieswhich plaintiff agrees can protectedcould easily determined based the context the e-mails.  Balancing this privacy interest against, most, the relatively inconsequential (if not non-existent) interests identified the plaintiff, the Court concludes that summary judgment would justified under Exemption well. See Horner, 879 F.2d 879 ([E]ven modest privacy interest, outweighs nothing every time.). 
Under FOIA, even some materials from the requested record[s] are exempt from disclosure, any reasonably segregable information from those documents must disclosed after redaction the exempt information, Johnson Executive Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002) (quoting U.S.C.  552(b)), unless [the non-exempt portions] are inextricably intertwined with exempt portions. Mead Data Cent., Inc. Dept the Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977).  Though plaintiff does not dispute that the government produced all the reasonably segregable information this case, the Court has an affirmative duty consider the segregability issue sua sponte. Trans-Pacific Policing Agreement United States Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).   
The Court satisfied that defendant has fulfilled this burden based Ms. Brinkmanns declaration. her declaration, she classifies each the documents redacted withheld OIP one more ten specific categories and, more importantly, describes the information that was redacted withheld great detail.   
Accordingly, and for the reasons stated above, defendants motion for summary judgment will GRANTED.  Plaintiffs motion for summary judgment will DENIED. separate order accompanies this Memorandum Opinion. 
 United States District Judge 
Date: May 12, 2014