IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,

Plaintiff,

Defendant.

PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT AND OPPOSITION

TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

law, statements of disputed and undisputed material facts, supporting declaration, exhibits, and a

proposed order.

Respectfully submitted,

__/s/ Nadav Ariel________________

BUCKLEY LLP

nariel@buckleyfirm.com

CAMPAIGN LEGAL CENTER

Danielle M. Lang (DC Bar # 1500218)

1411 K Street NW, Suite 1400

Washington, DC 20005

202-736-2200

dlang@campaignlegalcenter.org

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,

Plaintiff,

Defendant.

INTRODUCTION .......................................................................................................................... 1

FACTUAL BACKGROUND ......................................................................................................... 2

LEGAL STANDARD ..................................................................................................................... 9

ARGUMENT ................................................................................................................................ 10

I. DOJ Has Not Satisfied its Burden to Show that Exemption 5 Applies ............................ 10

A. DOJ Has Failed To Provide Sufficiently Detailed Vaughn Indices ........................... 10

B. DOJ Has Not Satisfied its Burden to Show That the Deliberative Process Privilege

Applies .................................................................................................................................. 12

Camera Review ..................................................................................................................... 23

II. DOJ Has Not Shown that it Conducted a Search Reasonably Calculated to Uncover all

Relevant Records. ..................................................................................................................... 23

A. DOJ Has Not Demonstrated the Reasonableness of its Search Process ..................... 23

B. DOJ’s Search Was Substantively Deficient ............................................................... 25

CONCLUSION ............................................................................................................................. 27

INTRODUCTION

whether the public has a right to know what information led to that decision and whether the

administration’s public statements and justifications for its decision were truthful. Congress

passed the Freedom of Information Act to “open agency action to the light of public scrutiny.”

Dep't of Air Force v. Rose, 425 U.S. 352, 372, 96 S. Ct. 1592, 1604, 48 L. Ed. 2d 11 (1976); see

also N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S. Ct. 2311, 2327, 57 L. Ed.

request from the Department of Justice (“DOJ”). That request, memorialized in a letter dated

December 12, 2017 from Assistant Attorney General Arthur Gary to the Census Bureau, stated

that DOJ was requesting to add a question regarding citizenship to the census in order to obtain

data to aid the department’s enforcement of Section 2 of the Voting Rights Act. Shortly thereafter,

on February 1, 2018, Campaign Legal Center (“CLC”) submitted the FOIA requests to DOJ now

at issue seeking documents relating to DOJ’s request. In response, DOJ initially failed to produce

any responsive records despite granting the request expedited processing due to the recognition of

the urgent public interest in the materials at issue. CLC then filed this lawsuit, challenging DOJ’s

failure to timely respond to the FOIA requests. Thanks to pressure from this Court, DOJ has since

commenced production of responsive materials but has disclosed only a small number of

documents, with many others improperly withheld under overbroad claims of exemption.

deficient and fail to provide the court with sufficient information to apply the claimed privileges.

Moreover, the documents are not subject to the deliberative process privilege because they post-

date the agency decisions at issue and therefore are neither pre-decisional nor deliberative; they

are not subject to the presidential communications privilege because DOJ has not established that

they were authored or solicited by the President or his immediate White House advisors on a matter

were selected for search and not others, and the search processes. And the limited information that

DOJ did provide revealed substantive deficiencies, raising doubt about the adequacy of the search

due to its limitation to only certain types of records, custodians, and an insufficient use of search

term searches.

Department”) Secretary Wilbur Ross announced his decision to add a question regarding

citizenship status to the 2020 Census Questionnaire.

Ex. 1 (Mar. 26, 2018 Memorandum from Sec’y of Commerce Wilbur Ross to Under Sec’y of

Commerce for Econ. Affairs Karen Dunn Kelley on Reinstatement of a Citizenship Question on

the 2020 Decennial Census Questionnaire).

arose due to a December 12, 2017 request from Arthur Gary, the General Counsel of DOJ’s Justice

Management Division (“JMD”), to add the citizenship question to the 2020 Census Questionnaire

Courts, that justification was a pretext.

DOJ sent its letter.

forced to acknowledge that the deliberative process for the decision occurred before the December

12, 2017 request.

May 2, 2017 Secretary Ross wrote, “I am mystified as to why nothing have [sp] been done in

response to my months old request that we include the citizenship question. Why not?” Earl

Comstock, a commerce official, responded,

“I agree Mr. Secretary. On the citizenship question we will get that

in place.… We need to work with Justice to get them to request

New York v. United States Dep’t of Commerce, 351 F. Supp. 3d 502, 567-68 (S.D.N.Y. 2019);

State v. Wilbur Ross, 358 F. Supp.3d 965, 974 (N.D. Cal. 2019); Kravitz v. U.S. Dep’t of

Commerce, 366 F. Supp.3d 681, 694 (D. Md. 2019).

Id.

Ex. 3 (Jun. 21, 2018 Supplemental Memorandum by Sec’y of Commerce Wilbur Ross Regarding

the Administrative Record in Census Litigation).

that citizenship be added back as a census question, and we have

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

question to be included. I will arrange a meeting with DoJ staff this

week to discuss.”

Given that Secretary Ross was only sworn in on February 28, 2017, the request to add the

still have not come to a conclusion please let me know your contact person and I will call the AG.”

On September 8, 2017, Mr. Comstock responded that: “I spoke several times with James McHenry

[DOJ] by phone, and after considering the matter further James said that Justice staff did not want

to raise the question… James directed me to … the Department of Homeland Security… after

discussion DHS really felt it was best handled by the Department of Justice. At that point… I asked

James Uthmeier [OGC at Commerce] to look into the legal issues and how Commerce could add

the question to the Census itself.”

Ex. 4 (May 2, 2017 email correspondence between E. Comstock and Sec’y W. Ross).

Ex. 6 (Sept. 8, 2017 memo from E. Comstock to Sec’y W. Ross)

[Secretary Ross] need[s] us to do” on the issue.

question apparently in hand, Census pressed ahead with finalizing the questionnaire and the

ensure that the request would be timely made, and shortly thereafter DOJ’s Arthur Gary issued the

December 12 letter.

already made decision, Census continues to claim that the reason it plans to ask the citizenship

question is to enable DOJ to enforce Section 2 of the Voting Rights Act (“VRA”).

12

Privilege Applies

deliberative process privilege because it has not shown that the withheld materials are

Declaration of Vanessa R. Brinkman (“OIP Decl.”) at ¶ 25-27; Declaration of Michael H. Allen

(“JMD Decl.”) at ¶ 17-20. However, as this Circuit has made clear, an agency must identify a

decision-making process. See Access Reports v. Dep't of Justice, 926 F.2d 1192, 1196 (D.C. Cir.

1991) (agency has “burden of identifying the decisionmaking process”). Further, drafts are not

automatically exempt. See Judicial Watch, Inc. v. U.S. Postal Service, 297 F.Supp.2d 252, 260

(D.D.C. 2004) (“[D]rafts are not presumptively privileged.”).

the Dec. 12 letter. Declaration of Tink Cooper (“CRD Decl.”) at ¶ 30. However, the relevant

Both of these decisions had been made prior to the creation of the withheld material.

agency decision making because DOJ was not engaging in policy making when it was drafting the

The majority of material withheld by DOJ is claimed to fall under Exemption 5; CLC does not

challenge DOJ’s Exemption 6 redactions.

13

request. It was, instead, drafting an already determined post-hoc rationale for an already decided

policy. DOJ should not be able to use Exemption 5 to shield its deliberations on how to most

the quality of a decision will be affected by communications with respect to the decision occurring

after the decision is finally reached, and therefore equally difficult to see how the quality of the

Roebuck & Co., 421 U.S. 132, 151 (1975).

1. The Withheld Materials Are Not Pre-Decisional

support a decision already made.” Petroleum Info. Corp. v. U.S. Dept. of Interior, 976 F.2d 1429,

no, by definition cannot be ‘predecisional.’” Judicial Watch, Inc. v. U.S. Postal Service, 297

F.Supp.2d 252, 260 (D.D.C. 2004). Here, the evidence shows that the ultimate agency

decisionmaker, Secretary Ross, had decided to add the citizenship question long before the creation

of the withheld materials.

14

generated before the adoption of an agency policy.” See Coastal States Gas Corp. v. Dep’t of

place.… We need to work with Justice to get them to request that citizenship be added back as a

census question[.]” See Ex. 4 (May 2, 2017 email exchange between Secretary Ross and Earl

Comstock). Three courts have reviewed these materials and concluded that Secretary Ross made

the decision to add the question months before DOJ agreed to request it and began drafting a letter.

New York v. United States Dep’t of Commerce, 351 F. Supp. 3d 502, 567-68 (S.D.N.Y. 2019);

State v. Wilbur Ross, 358 F. Supp.3d 965, 974 (N.D. Cal. 2019); Kravitz v. U.S. Dep’t of

Commerce, 366 F. Supp.3d 681, 694 (D. Md. 2019).

decision was an exercise to manufacture a false justification. See Wilbur Ross, 358 F. Supp.3d at

decisionmaker in arriving at his decision.” See Renegotiation Bd. v. Grumman Aircraft Eng’g

Corp., 421 U.S. 168, 184 (1975).

15

independent deliberative process (as opposed to a non-deliberative post-hoc effort to provide the

Dec. 19, 2017 (included in OIP’s Mar. 29, 2019 response)); see also OIP Vaughn index entries for

documents OIP-0101 to OIP-0102, OIP-0103, and OIP-0105. DOJ has not put forth any

explanation of what deliberative process was ongoing after the Dec. 12 letter was sent and therefore

has failed to meet its burden with respect to that material.

documents released by the Department of Commerce indicate that DOJ had decided to make the

request by September 18, 2017 at the latest. On that date, Secretary Ross spoke with Attorney

General Sessions who was “eager to assist” in supporting the citizenship question decision and

committed itself to adding the question by taking significant steps towards implementing the

addition and was anxious to receive the finalized request it was expecting from DOJ.

Ex. 7 (Sept. 18, 2017 email from D. Cutrona to W. Teramoto).

16

motion and declarations do not meet its burden to show that the withheld materials were “prepared

creation of the withheld materials and therefore are not pre-decisional.

2. The Withheld Materials Are Not Deliberative

of the documents at issue. Therefore, the materials do not reflect the “give-and-take of the

consultative process.”

question on its own and later shopped for assistance from other agencies to justify the addition. In

17

experiencing in the press at the time (the whole Comey matter). [The official] directed me to …

the Department of Homeland Security... after discussion DHS really felt that it was best handled

Justice to issue the request then appears to have been made during a September 18, 2017 call

between Secretary Ross and Attorney General Sessions. See Ex. 7.

“give-and-take of the consultative process.” See Coastal States Gas Corp. v. Dep’t of Energy, 617

F.2d 854, 866 (D.C. Cir. 1980); see also Nat’l Day Laborer Org. Network v. U.S. Immigration and

or decision.” (emphasis in original) (footnotes omitted)). Therefore, DOJ has not met its burden to

show the withheld material is deliberative.

draft versions of the December 12, 2017 letter were protected by the deliberative process privilege

for “messaging communications” should not control here. See State of New York v. U.S. Dep’t of

Commerce, 2018 WL 4853891 at *2 (18-cv-2921, S.D.N.Y. Oct. 5, 2018) (citing Access Reports

v. Dep’t of Justice, 926 F.2d 1192, 1196-97 (D.C. Cir. 1991). In that case, the court opined whether

18

addressed to Congress, the public, or the press. Id. at *3 (noting that such messaging

communications may involve substantive policymaking). Rather, it is styled as a policy document

become public can be categorized as a “messaging” document, then virtually any draft would be

privileged. Cf. Judicial Watch, Inc. v. U.S. Postal Service, 297 297 F.Supp.2d 252, 260 (D.D.C.

2004) (“[D]rafts are not presumptively privileged.”). Regardless, for the “messaging” deliberative

privilege to apply, the posture of this action places the burden on DOJ to establish that the

documents are messaging documents and were created primarily for that purpose. DOJ has made

prevent injury to the quality of agency decisions.” N.L.R.B. v. Sears, Roebuck & Co., 421 U.S.

132, 151 (1975). DOJ states that release of the withheld materials would cause harm, but “[a]n

agency cannot meet its statutory burden of justification by conclusory allegations of possible harm.

It must show by specific and detailed proof that the disclosure would defeat, rather than further,

the purposes of the FOIA.” See Mead Data Cent., Inc. v. U.S. Dept. of Air Force, 566 F.2d 242,

258 (D.C. Cir. 1977). See also Formaldehyde Inst. v. Dep’t of Health and Human Services, 889

F.2d 1118, 1123-24 (D.C. Cir. 1989) (overruled on other grounds) (“The pertinent issue here is

what harm, if any, the [withheld material’s] release would do to [the agency’s] deliberative

process.”); Lee v. FDIC, 923 F. Supp. 451, 456 (S.D.N.Y. 1996) (“[T] the exemption should only

be invoked when the dangers which motivated the enactment of the exemption are present[.]”).

19

proposals, suggestions, and other subjective documents,” but “the privilege does not protect a

is a draft … is not a sufficient reason to automatically exempt it from disclosure... [T]he policy

reasons for the existence of the privilege must be implicated in order for the Court to find

withholding of information necessary.” Lee v. F.D.I.C., 923 F. Supp. 451, 458 (S.D.N.Y. 1996).

See also Judicial Watch, Inc. v. U.S. Postal Service, 297 297 F.Supp.2d 252, 260 (D.D.C. 2004)

(“[D]rafts are not presumptively privileged.”).

are formulated. See New York v. United States Dep’t of Commerce, 351 F. Supp. 3d 502, 567-68

(S.D.N.Y. 2019); State v. Wilbur Ross, 358 F. Supp.3d 965, 974 (N.D. Cal. 2019); Kravitz v. U.S.

Dep’t of Commerce, 366 F. Supp.3d 681, 694 (D. Md. 2019). The documents would have been

created regardless of the specter of future publication because they were created as part of an effort

to provide a false justification for an agency decision that had already been made. “Deliberations

about how to present an already decided policy to the public, or documents designed to explain

that policy to—or obscure it from—the public, including in draft form, are at the heart of what

should be released under FOIA… The concern of the privilege is to prevent the chilling of internal

agency discussions that are necessary to the operation of good government; it is not concerned

with chilling agency efforts to obfuscate, which are anathema to the operation of democratic

20

Agency, 811 F. Supp. 2d 713, 741-42 (S.D.N.Y. 2011) (footnotes omitted).

to the material at issue, communications between DOJ attorneys and an unidentified individual in

the White House seeking advice as to congressional notification of the Department’s request for

investigating and formulating the advice to be given the President.’” Judicial Watch, Inc. v.

communications privilege should never serve as a means of shielding information regarding

governmental operations that do not call ultimately for direct decisionmaking by the President.”

In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997).

21

Justice v. U.S. Dep’t of State, 330 F. Supp. 3d 293 (D.D.C. 2018) (finding insufficient

information to apply the presidential communications privilege where the claimant agency

suggests that the privilege is inapplicable. See OIP Decl. at ¶ 40; see also Judicial Watch, Inc. v.

Dept. of Justice, 365 F.3d 1108 at fn1 (drawing a distinction between the Office of the President,

which is not subject to FOIA, and the Executive Office of the President, which is subject to

FOIA.). Moreover, DOJ has not established that the communications at issue concern a

“quintessential and non-delegable Presidential power,” or an issue that calls for direct decision-

communications privilege are also protected by the deliberative process privilege, DOJ has failed

also to meet its burden to show that the deliberative process privilege for the same reasons as

described supra at Section I.A.

DOJ’s claim of work product protection for draft responses to interrogatories issued by

the United States Commission on Civil Rights is misplaced because the documents were not

created in anticipation of an adversarial proceeding. “[A] proceeding, including an

administrative proceeding, should be considered ‘adversarial’ only if the proceeding has

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,

Plaintiff,

UNITED STATES DEPARTMENT OF

Defendant.

Oral Argument Requested

PLAINTIFF’S RESPONSE TO DEFENDANT’S STATEMENT OF MATERIAL FACTS

UNDISPUTED FACTS

determined that some limited information could be withheld as exempt from disclosure under

FOIA Exemptions (b)(5) and (b)(6).” There are legal conclusions which CLC strongly contests.

CLC has no basis on which to dispute or accept paragraphs 18-32 of Defendant’s statement.

CLC has no basis on which to dispute or accept paragraph 34 of Defendant’s statement.

CLC has no basis on which to dispute or accept paragraphs 45-58 of Defendant’s statement.

CLC has no basis on which to dispute or accept paragraphs 60-61 of Defendant’s statement.

CLC disputes paragraph 62 of Defendant’s statement to the extent it states that “the Civil

Rights Division searched for records responsive to the request using the most comprehensive

legal conclusion which CLC strongly contests.

CLC has no basis on which to dispute or accept paragraph 64 of Defendant’s statement.

CLC disputes the entirety of paragraphs 71-73 of Defendant’s statement. The paragraph is

a legal conclusion CLC strongly contests.

In addition, there is no genuine dispute with respect to the following additional material

request that we include the citizenship question. Why not?” On the same day, Earl Comstock

responded, “I agree Mr. Secretary. On the citizenship question we will get that in place.… We

need to work with Justice to get them to request that citizenship be added back as a census

question, and we have the court cases to illustrate that DoJ has a legitimate need for the question

to be included. I will arrange a meeting with DoJ staff this week to discuss.” Ex. 4.

2. On August 8, 2017, Secretary Ross wrote in an email to Earl Comstock “where is the DoJ

in their analysis? If they still have not come to a conclusion please let me know your contact

person and I will call the AG.” Ex. 5.

3. On September 8, 2017, Earl Comstock responded, “I spoke several times with James

McHenry [DOJ] by phone, and after considering the matter further James said that Justice staff

did not want to raise the question… James directed me to … the Department of Homeland

Security… after discussion DHS really felt it was best handled by the Department of Justice. At

Teramoto, a Commerce official, “The Attorney General is available on his cell… [I]t sounds like

we can do whatever you all need us to do and the delay was due to a miscommunication. The AG

is eager to assist.” Ex. 7.

5. In October, 2017, a Trump transition official provided John Gore, the DOJ official who

was the principal drafter of the Dec. 12, 2017 letter, with “a draft letter that would request the

official, “Census is about to begin translating the questions into multiple languages and has let

the printing contract. We are out of time. Please set up a call for me tomorrow with whoever is

the responsible person at Justice. We must have this resolved.” Ex. 10.

7. On December 12, 2017, Arthur E. Gary sent a letter to the Census Bureau requesting that

a citizenship question be added to the 2020 Census Questionnaire. Ex. 2.

8. On March 26, 2018, Secretary Ross issued a memorandum regarding the reinstatement of

a citizenship question on the census. Ex. 1.

9. On June 21, 2018, Secretary Ross caused the Census Bureau to file a supplemental

memorandum to the administrative record regarding the deliberative process for adding the

citizenship question to the census. Ex. 3.

Respectfully submitted,

__/s/ Nadav Ariel________________

BUCKLEY LLP

nariel@buckleyfirm.com

CAMPAIGN LEGAL CENTER

Danielle M. Lang (DC Bar # 1500218)

1411 K Street NW, Suite 1400

Washington, DC 20005

202-736-2200

dlang@campaignlegalcenter.org

CERTIFICATE OF SERVICE

I certify that on this 22th day of May, 2019, I electronically filed the foregoing document

Nadav Ariel