United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2021 Decided May 17, 2022
No. 20-5233
CAMPAIGN LEGAL CENTER,
APPELLEE
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01771)
No. 20-5234
CAMPAIGN LEGAL CENTER,
APPELLEE
v.
UNITED STATES DEPARTMENT OF JUSTICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01187)
2
Gerard Sinzdak, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs were
Brian M. Boynton, Acting Assistant Attorney General at the
time the briefs were filed, and Mark B. Stern, Attorney.
Elizabeth E. Olien argued the cause for appellee. On the
brief were Adam Miller and Nadav Ariel.
Before: MILLETT, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: On December 12, 2017, Arthur
Gary, General Counsel of the Justice Management Division at
the Department of Justice, sent a letter to the Census Bureau
requesting the addition of a citizenship question to the 2020
Census. Four months later, then-Secretary of Commerce
Wilbur Ross relied on the Gary Letter to direct the Census
Bureau to include a citizenship question on the Census
questionnaire.
Shortly after the Department of Justice sent the Gary
Letter, the Campaign Legal Center filed a Freedom of
Information Act (“FOIA”) request with the Justice Department
seeking documents that would explain how and why the agency
came to request the citizenship question. The Department
withheld more than 100 pages of responsive documents under
FOIA Exemptions 5 and 6.
As relevant here, the district court held that some of the
Justice Department’s withholdings based on the deliberative
process privilege were improper, and ordered the Department
to produce those documents. The court found that responsive
drafts of the Gary Letter and associated emails could not be
withheld because they were completed after the Attorney
3
General had already decided to request the citizenship
question.
We reverse in part and remand. The process of drafting
the Gary Letter to request the addition of a citizenship question
in a way that protected the Department’s litigation and policy
interests involved the exercise of policymaking discretion, and
so the letter’s content itself was a relevant final decision for
purposes of FOIA’s deliberative process privilege. For that
reason, we hold that the Justice Department properly withheld
non-final drafts of the letter, and that most of the Department’s
redactions of associated emails were lawful. But because the
record fails to establish whether several redacted emails were
predecisional and deliberative, we remand for the district court
to reexamine those documents.
I
A
Congress enacted the Freedom of Information Act to
increase governmental transparency and to “protect[] the basic
right of the public to be informed about what their government
is up to.” Hall & Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir.
2020) (internal quotation marks and citation omitted).
FOIA requires covered federal agencies to provide
documents upon request by a member of the public unless the
records fall into an enumerated exemption. See 5 U.S.C.
§ 552(b)(1)–(9). Those “limited exemptions do not obscure the
basic policy that disclosure, not secrecy, is the dominant
objective of” FOIA. Department of the Air Force v. Rose, 425
U.S. 352, 361 (1976). As a result, even for exempt documents,
agencies must disclose “‘any reasonably segregable portion of
a record,’ the ‘amount of information deleted, and the
exemption under which the deletion is made.’” Hall & Assocs.,
4
956 F.3d at 624 (alteration omitted) (quoting 5 U.S.C.
§ 552(b)). In addition, under the FOIA Improvement Act of
2016, an agency may only withhold information under a FOIA
exemption if it “reasonably foresees that disclosure would
harm an interest protected by an exemption[,]” or if “disclosure
is prohibited by law[.]” Pub. L. No. 114-185, § 2, 130 Stat.
538, 539 (codified at 5 U.S.C. § 552(a)(8)(A)(i)).
This case concerns Exemption 5, which excludes from
FOIA’s disclosure obligation “inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party other than an agency in litigation with the agency[.]” 5
U.S.C. § 552(b)(5).
Exemption 5 “incorporates the privileges available to
Government agencies in civil litigation.” United States Fish &
Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785 (2021).
Among those privileges is the deliberative process privilege.
Id. That privilege protects “documents reflecting advisory
opinions, recommendations and deliberations comprising part
of a process by which governmental decisions and policies are
formulated.” Reporters Comm. for Freedom of the Press v.
FBI, 3 F.4th 350, 357 (D.C. Cir. 2021) (quoting NLRB v. Sears,
1
Roebuck & Co., 421 U.S. 132, 150 (1975)).
1
The deliberative process privilege only shields documents
from FOIA disclosure for 25 years after they are created. See 5
U.S.C. § 552(b)(5).
5
B
In May 2017, Secretary of Commerce Wilbur Ross asked
his Director of Policy, Earl Comstock, why the Department had
not made progress in adding a citizenship question to the
Census. See J.A. 184. Comstock reassured the Secretary that
“we will get that [question] in place.” J.A. 184. Comstock
explained that Commerce needed the Justice Department to
request the addition of the question, and added that “we have
the court cases to illustrate that DoJ has a legitimate need for
the question to be included.” J.A. 184.
As of September 2017, however, the Justice Department
still had not requested the addition of a citizenship question to
the Census. See Department of Commerce v. New York, 139 S.
Ct. 2551, 2575 (2019); J.A. 188. Comstock then asked his
agency’s legal staff whether Commerce could add the
citizenship question “without receiving a request from another
agency.” Department of Commerce, 139 S. Ct. at 2575.
Ultimately, though, Commerce decided that the best
course of action was for the Justice Department’s Civil Rights
Division to make the request on the ground that improved
citizenship data would help with enforcement of the Voting
Rights Act. Department of Commerce, 139 S. Ct. at 2575.
Secretary Ross then personally reached out to Attorney General
Jeff Sessions about requesting the citizenship question. On
September 17th, while scheduling a call between the cabinet
members, a staffer in the Office of the Attorney General wrote
to a counterpart at the Department of Commerce: “[I]t sounds
like we can do whatever you all need us to * * *. The AG is
eager to assist.” J.A. 190; see also Department of Commerce,
139 S. Ct. at 2575 (“[I]t was not until * * * Secretary [Ross]
contacted the Attorney General directly that DOJ’s Civil Rights
Division expressed interest in acquiring census-based
6
citizenship data to better enforce the VRA.”). John Gore, the
Acting Assistant Attorney General for the Civil Rights
Division, was tasked with writing the letter, and Arthur Gary,
General Counsel of the Justice Management Division, was to
be the letter’s signatory.
In the Fall of 2017, an outside advisor to the Department
of Commerce gave Gore a draft letter requesting the addition
of a citizenship question to the Census. Gore also received a
memorandum from an attorney in Commerce’s Office of
General Counsel that had “look[ed] into the legal issues
[regarding the citizenship question] and how Commerce could
add the question to the Census itself.” J.A. 188.
By early November, Gore had completed his own first
draft of the letter and circulated it for comments within the
Justice Department’s Civil Rights Division. The Voting
Section Chief provided feedback, as did a political appointee
in Gore’s office. For the rest of the month, Gore and Gary
continued to discuss the letter and to exchange drafts. On
November 27th, Gore sent a draft to Justice Department
leadership. Over the following two weeks, Rachael Tucker of
the Office of the Attorney General and Robert Troester of the
Office of the Deputy Attorney General reviewed and
commented on the draft. Two other advisors to the Attorney
General also participated in the drafting process.
On December 8th, with the final feedback from Justice
Department leadership incorporated, Gore told Gary that the
letter was ready to send to the Census Bureau. On the afternoon
of December 12th, Gary’s secretary mailed the letter to Ron
Jarmin, Acting Director of the Census Bureau. See J.A. 631–
633 (final Gary Letter).
In the final Gary Letter, the Justice Department requested
that the Census Bureau add “a question regarding citizenship”
7
to the 2020 Census questionnaire. J.A. 631. The Department
reasoned that the resulting “data is critical to the Department’s
enforcement of Section 2 of the Voting Rights Act” because
the Department “needs a reliable calculation of the citizen
voting-age population in localities where voting rights
violations are alleged or suspected.” J.A. 631.
The letter also gave several reasons why the Department
wanted the Bureau to ask the citizenship question on the main
Census questionnaire rather than on the American Community
Survey, a non-comprehensive population survey separately
conducted by the Census Bureau. At bottom, the letter claimed
that data from the Census would be more accurate than
Community Survey data and would be better suited for
comparison with the total population estimates that
jurisdictions use in redistricting.
In March 2018, Secretary Ross issued a memorandum
directing the Census Bureau to place a citizenship question on
the Census questionnaire, relying in large part on the Gary
Letter as the basis for his decision.
In June 2019, the Supreme Court held that Secretary
Ross’s rationale for adding the citizenship question to the
Census “seems to have been contrived[,]” and the decision to
add the question was unreasoned. Department of Commerce,
139 S. Ct. at 2575–2576.
C
On February 1, 2018, the Campaign Legal Center
(“Center”) submitted a FOIA request to the Justice
Department. The Center sought “all records pertaining to
Arthur E. Gary’s December 12, 2017 request to the Census
Bureau to add a Citizenship question to the 2020 Census
Questionnaire.” J.A. 23. The Center requested responsive
8
documents from the Justice Management Division, the
Attorney General’s Office, and the Civil Rights Division.
On February 28th, the Civil Rights Division withheld all
responsive documents from disclosure under Exemption 5. A
month later, the Center sought administrative review of the
Division’s decision. After receiving no response from the
Division for two months, the Center filed suit against the
Justice Department to enforce its FOIA request. See 5 U.S.C.
§ 552(a)(6)(A)(ii), (C)(i).
When the Justice Management Division and the Office of
the Attorney General likewise failed to respond to the FOIA
request in a timely manner, the Center sued the Justice
Department a second time to enforce its FOIA request directed
at those two components.
While the cases were pending, all three components of the
Justice Department produced some documents to the Center
while withholding others in whole or in part. As of the time of
the district court decisions, the Civil Rights Division had found
272 responsive pages and released 184 in whole or in part. The
Office of the Attorney General had found 289 responsive pages
and had provided 198 of them in whole or in part. And the
Justice Management Division had found 131 pages and had
2
released 116 pages, with some redactions. The Justice
2
These numbers include documents referred to the three
components by other parts of the Justice Department for FOIA
processing.
9
Department argued that its withholdings were justified under
3
FOIA Exemptions 5 and 6, 5 U.S.C. § 552(b)(5), (6).
The parties cross-moved for summary judgment in both
cases. As relevant here, their dispute concerned the validity of
the Justice Department’s withholding of drafts of the Gary
Letter and some or all of approximately twenty related emails
under Exemption 5’s deliberative process privilege. In both
cases, the district court granted the Center summary judgment
as to those documents and ordered the three Justice Department
components to produce them to the Center. Campaign Legal
Center v. Department of Justice, 464 F. Supp. 3d 397, 408–409
(D.D.C. 2020) (Campaign Legal Center I); Campaign Legal
Center v. Department of Justice, No. 18-cv-01771, 2020 WL
2849909, at *14 (D.D.C. June 1, 2020) (Campaign Legal
Center II).
The court found that Attorney General Sessions had made
his final decision to send the request for a citizenship question
to the Census Bureau before the Gary Letter was even drafted.
See Campaign Legal Center I, 464 F. Supp. 3d at 407–408;
Campaign Legal Center II, 2020 WL 2849909, at *7–8; see
also Department of Commerce, 139 S. Ct. at 2575. The court
reasoned that, because the letter “did not involve discretion
about an agency position or about the primary reasons for the
agency position[,]” Campaign Legal Center I, 464 F. Supp. 3d
at 407, its composition did not reflect the “exercis[e of] policy-
implicating judgment” required to trigger the deliberative
process privilege, id. (internal quotation marks omitted)
3
Exemption 6 protects “personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy[.]” 5 U.S.C. § 552(b)(6). The Center
does not challenge here any of the Justice Department’s Exemption
6 withholdings.
10
(quoting Petroleum Info. Corp. v. Department of the Interior,
976 F.2d 1429, 1435 (D.C. Cir. 1992)); see Campaign Legal
Center II, 2020 WL 2849909, at *7 (same). For that reason,
the district court ruled that the process of writing the Gary
Letter was not predecisional. Because documents must be both
predecisional and deliberative to fall under the deliberative
process privilege, the court held that the Gary Letter documents
were not exempt from disclosure.
The district court then ordered the Justice Department
components to produce the drafts of the Gary Letter that the
agency had withheld in full, and to remove Exemption 5
redactions from emails written by various Justice Department
4
employees while drafting and editing the Gary Letter.
The Justice Department timely appealed the district court’s
orders to release drafts of the Gary Letter and related emails.
II
The district court had jurisdiction under 5 U.S.C.
§ 552(a)(4)(B) and 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1292(a)(1).
Though the district court’s orders were not final, see 28 U.S.C.
§ 1291, because they did not “fully resolve all the issues before
that court,” they are appealable under 28 U.S.C. § 1292(a)(1)
as injunctions ordering disclosure. Judicial Watch, Inc. v.
4
To the extent the Justice Department appeals the court’s order
to release the final Gary Letter, any dispute over that part of the order
is moot because the Department has already released it. See Bayala
v. Department of Homeland Security, 827 F.3d 31, 34 (D.C. Cir.
2016); Declaration (Third) of Vanessa R. Brinkmann at 5 n.3,
Campaign Legal Center II, 2020 WL 2849909 (No. 18-cv-01771),
ECF No. 48-2; see also J.A. 829, 440.
11
Department of Energy, 412 F.3d 125, 128 (D.C. Cir. 2005); see
also Leopold v. CIA, 987 F.3d 163, 169 (D.C. Cir. 2021)
(“There is no doubt that orders requiring the disclosure of
documents [in a FOIA case] are appealable injunctions.”)
(internal quotation marks and citation omitted).
We review a district court’s grant of summary judgment in
FOIA cases de novo. Protect Democracy Project, Inc. v.
National Security Agency, 10 F.4th 879, 884 (D.C. Cir. 2021).
Summary judgment is only appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). In ruling on a FOIA summary judgment motion,
“courts may rely on non-conclusory agency affidavits
demonstrating the basis for withholding if they are not
contradicted by contrary evidence in the record or by evidence
of the agency’s bad faith.” Reporters Comm., 3 F.4th at 361.
III
The deliberative process privilege shields documents that
debate and discuss proposed agency decisions before they are
finalized. See Department of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8–9 (2001). The privilege
ensures “that subordinates within an agency will feel free to
provide the decisionmaker with their uninhibited opinions and
recommendations without fear of later being subject to public
ridicule or criticism[.]” Coastal States Gas Corp. v.
Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
The privilege also shields “policymakers from premature
disclosure of their proposals before they have been completed
or adopted[,]” promoting full and robust consideration of
agency options. Reporters Comm., 3 F.4th at 361. And it
protects the public from being misled by “documents
suggesting reasons and rationales for a course of action which
12
were not in fact the ultimate reasons for the agency’s action.”
Coastal States, 617 F.2d at 866.
Ultimately, the privilege is designed to improve
governmental decisionmaking by encouraging public servants
to speak candidly with one another and to fully flesh out the
reasons for and against potential agency actions before they are
taken. See Fish & Wildlife Serv., 141 S. Ct. at 785; see also
Sears, 421 U.S. at 151.
To qualify for the privilege a document must be both
predecisional and deliberative. Machado Amadis v.
Department of State, 971 F.3d 364, 370 (D.C. Cir. 2020).
Documents are predecisional if “they were generated
before the agency’s final decision on the matter[.]” Fish &
Wildlife Serv., 141 S. Ct. at 786. A paradigmatically
predecisional document is one prepared “to assist an agency
decisionmaker in arriving at [a] decision, rather than to support
a decision already made.” Petroleum Info. Corp., 976 F.2d at
1434 (internal quotation marks and citation omitted).
Documents qualify as deliberative if “they were prepared to
help the agency formulate its position.” Fish & Wildlife Serv.,
141 S. Ct. at 786.
While the “predecisional” prong turns centrally on
whether agency communications precede a final decision, the
“deliberative” prong focuses on whether the substance of the
documents “reflects the give-and-take of the consultative
process[.]” Reporters Comm., 3 F.4th at 362 (quoting Judicial
Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006)).
To demonstrate that a document is deliberative, the
government must explain the role it played in administrative
decisionmaking—the “who, what, where, and how” of internal
governmental deliberations. Judicial Watch, Inc. v.
13
Department of Justice, 20 F.4th 49, 57 (D.C. Cir. 2021)
(internal quotation marks omitted). To meet that burden, the
government typically must show “the roles of the document
drafters and recipients[,]” the “nature of the withheld
content[,]” and the “stage within the broader deliberative
process in which the withheld material operates[.]” Id. at 56.
Finally, the government must explain “the way in which the
withheld material facilitated agency deliberation.” Id.
We hold that all of the withheld drafts of the Gary Letter,
and the bulk of the related emails, were both predecisional and
deliberative. The record on five of the redacted emails,
however, is too sparse for us to determine whether they fall
within the scope of the privilege. So as to those documents, we
remand to the district court for further consideration.
A
1
To show that the drafts of the Gary Letter and associated
emails qualify as predecisional, the Justice Department bears
the burden of demonstrating that they were created “during an
agency’s deliberations about a policy,” rather than simply
“embody[ing] or explain[ing] a policy that the agency adopts.”
Fish & Wildlife Serv., 141 S. Ct. at 783. Whether documents
precede a final, adopted decision must be analyzed “in the
context of the administrative process which generated them.”
Id. at 786 (quoting Sears, 421 U.S. at 138). The question is a
“functional rather than [a] formal inquiry.” Id. at 788. If, for
example, an agency hides “a functionally final decision in draft
form, the deliberative process privilege will not apply.” Id.
After all, “[w]hat matters * * * is not whether a document is
last in line, but whether it communicates a policy on which the
agency has settled.” Id. at 786.
14
The parties do not dispute, nor could they on this record,
that the documents at issue were created after the Attorney
General’s decision to request that the Census Bureau include a
citizenship question on the Census. So they were not
predecisional as to that policy judgment.
But that does not end our analysis. The policy judgments
involved in the formulation of the Gary Letter went beyond the
single, bottom-line decision to request a citizenship question.
As precedent from this court has recognized, the substantive
judgment calls made in the process of drafting and editing a
formal agency document that first communicates a policy
decision can themselves embody distinct policy
determinations, especially when the content of that
communication itself shapes and sharpens the underlying
policy judgment or will have direct consequences for ongoing
agency programs and policies. See Reporters Comm., 3 F.4th
at 362–364. More specifically, agency choices about what
rationales, justifications, and limitations to provide—and
which to leave out—in articulating an important agency
decision can involve difficult and substantive policy
determinations. Debate and discussion about such statements
precede—are predecisional to—the actual determination of
how best both to define the scope and contours of the new
policy, and to persuasively communicate its terms and rationale
to the public. That is especially the case when those decisions
involve “critical judgment calls aimed at advancing the
agency’s” distinct policy interests. Id. at 363; see also Russell
v. Department of the Air Force, 682 F.2d 1045, 1049 (D.C. Cir.
1982) (“The policies embodied in Exemption [5] are as
applicable to the * * * editorial review process as they are to
other agency deliberations that precede agency decisions.”).
In other words, even after an agency head has set the
direction of agency policy at the macro level, the subsequent
15
work needed to define, refine, debate, and flesh out the
boundaries of and justifications for that position can, upon a
proper showing, also qualify as predecisional. In Reporters
Committee, for example, we held that emails discussing a draft
letter from the Director of the FBI to the New York Times
defending a controversial agency policy were predecisional.
Reporters Comm., 3 F.4th at 362–364. We noted that the
emails were written “not so much to explain the agency’s
already-decided policy, but to figure out how to best promote
and ensure the continuation” of a policy facing “intense
congressional and public criticisms[.]” Id. at 363. Mounting
such a defense often involves “internal debates and
deliberations about whether and how best to endorse and to
advocate” for consequential policy decisions. Id. at 364.
Those are precisely the type of internal governmental
discussions the deliberative process privilege is designed to
protect. Cf. National Security Archive v. CIA, 752 F.3d 460,
465 (D.C. Cir. 2014) (Kavanaugh, J.) (editing decisions can
“involve[ the] policy-oriented judgment” that is the hallmark
of actions protected by the deliberative process privilege)
(formatting modified and citation omitted).
Similarly, in Dudman Communications Corp. v.
Department of the Air Force, this court held that a draft agency
history of Air Force actions in South Vietnam was
predecisional. 815 F.2d 1565, 1568–1569 (D.C. Cir. 1987).
Even though the Air Force had already “decided to publish a
history” on that subject before the draft was written, we found
that pre-publication “editorial judgments—for example,
decisions to insert or delete material or to change a draft’s focus
or emphasis”—were protected. Id. at 1566, 1569.
That makes sense. As even the Center agrees, see Oral
Arg. Tr. 29:16–30:6, after the Solicitor General of the United
States makes the final decision to appeal or to file a case in the
16
Supreme Court, the internal deliberations involved in drafting
and defining the precise content and reach of agency
arguments, as well as how most effectively to give voice to the
agency position in a brief, all involve the type of substantive
policy judgments that qualify as predecisional.
Likewise, even after an administrative law judge
determines how to rule on a case, the process of drafting a
decision will generally involve the iterative weighing of legal
and policy concerns that precede (and are predecisional to) the
ultimate agency work product. In that way, spelling out a
policy’s metes and bounds and its justifications may involve
additional policy judgments beyond the initial decision to
pursue an overarching goal.
Much the same happened here. The record demonstrates
that, in drafting the Gary Letter, the Justice Department was
not simply describing an already-made agency decision.
Instead, it was engaged in formulating and refining both the
actual content of and the public rationale for a new and
consequential governmental policy in a way that required
balancing the proposed justifications for a citizenship question
with other departmental policy and litigation interests. To that
point, the Acting Chief of the Civil Rights Division’s Freedom
of Information/Privacy Act Branch, Tink Cooper, attested that,
in the drafting and editing process, personnel within the Justice
Department sought “review and input,” requested additional
“relevant information,” and engaged in a “frank discussion of
vital enforcement interests[.]” Declaration of Tink Cooper
¶ 30, J.A. 456; see also id. ¶¶ 24–26, J.A. 454–455 (similar
statements regarding emails between Gore and Justice
Department leadership). Several of the emails from Justice
Department personnel “contain attorney discussion, opinions,
and analyses of the various draft versions[,]” evidencing that
17
agency staff were still making substantive and sensitive legal
judgments. J.A. 608 (Civil Rights Division Vaughn Index).
Critically, the record shows that the Justice Department
did not rotely adopt the draft letter provided to Acting Assistant
Attorney General Gore by an advisor to the Commerce
Department. The letter from the Commerce advisor is barely
more than a page in length and contains almost no analysis of
case law. J.A. 645–646; see also J.A. 651; Defendant’s Resp.
to Pl.’s Second Notice of Suppl. Authority, Campaign Legal
Center I, 464 F. Supp. 3d 397 (No. 18-cv-01187), ECF Nos. 28
& 28-1. That draft asserted that the American Community
Survey “is not viable and/or sufficient for purposes of
redistricting[,]” and that recent “Federal Court decisions will
require block level data that can only be secured by a
mandatory question in the 2020 [Census].” J.A. 645.
The Gary Letter, by contrast, runs over three pages, and
includes numerous citations and analyses of case law. The
language is also notably more nuanced and caveated, reflecting
the fact that careful institutional judgments were still being
made about the policy boundaries of the rationale for the
Justice Department’s request and its legal justification. For
example, the Gary Letter says only that the “census
questionnaire is the most appropriate vehicle for collecting”
citizen voting-age population data, not that it is required by
court decisions. J.A. 631 (emphasis added); compare J.A. 631,
with J.A. 645 (Commerce advisor letter stating that “recent
Court decisions * * * require[]” data that can “only be
provided” by the Census). Similarly, the Gary Letter says that
the American Community Survey data is not “ideal” for
redistricting purposes, rather than declaring it inviable. J.A.
632; compare J.A. 632, with J.A. 645 (Commerce advisor letter
18
stating that American Community Survey “data is not viable
5
and/or sufficient for purposes of redistricting”).
In short, a comparison of the letter given to the Department
by a Commerce advisor and the final Gary Letter supports the
Civil Rights Division’s explanation that, in drafting and editing
the letter, agency staff carefully considered how best to protect
“vital enforcement interests[.]” Cooper Decl. ¶ 30, J.A. 456.
For example, an unqualified rejection of the viability of
Community Survey data might have weakened the Justice
Department’s ability to use such data in already pending or
future litigation. That type of sensitive determination about
how to promote a new and potentially controversial policy
proposal while protecting ongoing agency interests mirrors the
kind of policy discussions this court recognized as
predecisional in Reporters Committee. See 3 F.4th at 363
(emails sent as “part of an internal dialogue about critical
judgment calls aimed at advancing the agency’s interests in the
midst of a vigorous public debate about [a policy’s propriety]”
were predecisional).
The Center suggests that this case is different because the
“Gary [L]etter * * * was simply a pretext” and was not
“describing an actual policy decision of the Department[.]”
Oral Arg. Tr. 31:11–13; see also Center Br. 8–9. But the
Center has not cited any case under FOIA that has recognized
an exception to the deliberative process privilege for pretextual
5
Compare also, e.g., J.A. 645 (Commerce advisor letter
asserting that “data on citizenship is specifically required to ensure
that the Latino community achieves full representation in
redistricting”), with J.A. 631–633 (Gary Letter making no such
claim); J.A. 633 (Gary Letter requesting that the Census Bureau
“maintain the citizenship question on the ACS”), with J.A. 645–646
(Commerce advisor letter making no such request).
19
documents, nor has it advanced a developed argument to that
6
effect.
To sum up, read “in the context of the administrative
process which generated them[,]” the drafts of the Gary Letter
and the bulk of associated communications are predecisional
because the decision to request a citizenship question itself
triggered a new and related series of substantive policy
judgments about how best to formulate and justify such a
request in the first instance, which reasons to provide and
which to omit, and what limitations to impose on the request.
Fish & Wildlife Serv., 141 S. Ct. at 786 (citation omitted). The
Justice Department did not conclude that decisionmaking
7
process until it produced the final draft of the Gary Letter.
6
The best the Center musters is a citation to In re Sealed Case,
stating that “[w]here the documents sought shed light on a false
justification for a policy, withholding should be denied ‘on the
grounds that shielding internal government deliberations in this
context does not serve the public’s interest in honest, effective
government.’” Center Br. 12 (secondary internal quotation marks
omitted) (quoting In re Sealed Case, 121 F.3d. 729, 738 (D.C. Cir.
1997)). That case, though, involved a privilege assertion in
litigation. And we have already held that the type of balancing
undertaken when the deliberative process privilege is asserted in
litigation “does not figure into privilege determinations under
FOIA[.]” Protect Democracy Project, 10 F.4th at 886.
7
The Center never raised before the district court or this court
the question of whether the Department’s declarations demonstrated
the type of reasonably foreseeable harm required by the FOIA
Improvement Act, 5 U.S.C. § 552(a)(8)(A)(i)(I). See Reporters
Comm., 3 F.4th at 369–372. So that question is not before us.
20
2
In addition to being predecisional, all of the Gary Letter
drafts, and most of the associated email communications, are
also deliberative. That is, they “reflect the give-and-take of the
consultative process” underlying the formulation of the Gary
Letter and its proposed policy justifications for the requested
citizenship question. Judicial Watch, Inc. v. Department of
Defense, 847 F.3d 735, 739 (D.C. Cir. 2017) (formatting
modified and citation omitted). Unlike discussions about
“already-made and in-place policy choices[,]” Reporters
Comm., 3 F.4th at 367, the Justice Department’s crafting of the
Gary Letter entailed exactly “the type of back-and-forth
exchange of ideas, constructive feedback, and internal debate
* * * that sits at the heart of the deliberative process
privilege[,]” id. at 364. The withheld documents here are
actively edited drafts of an unfinished, work-in-progress policy
letter, along with emails exchanging ideas about what that
statement should or should not say. Such “[p]roposed drafts of
a non-final agency decision that are still undergoing review,
debate, and editing” constitute “deliberative work in
progress[.]” Id.
As to most of the withheld documents, the Justice
Department has also met its burden to explain what role the
communications played in the deliberative process. See
Judicial Watch, 20 F.4th at 56–57. The Department identified
(i) who sent and read the files at issue by name and position
within the agency, (ii) what stage of the process they addressed,
with specific reference to the state of the draft, and (iii) what
the comments involved, such as language changes and other
recommendations about the best way to articulate the precise
content of and justifications for this new agency policy. See
J.A. 506, 545–550, 552–554, 558–562, 566–567, 594, 597–
598, 604–607.
21
The declarations and redacted emails also explain how
“the withheld material facilitated agency deliberation.”
Judicial Watch, 20 F.4th at 56. They show that these
documents contain close line edits and editorial suggestions by
named officials in the Department of Justice—most of them
senior—on a letter staking out the agency position on an issue
they considered sensitive, important, and potentially
controversial. See, e.g., J.A. 596 (Gore explaining in email to
Voting Section Chief Chris Herren that the draft Gary Letter is
“confidential and close hold”). And the documents contained
comments grounded in substantive legal analysis, see, e.g., J.A.
507 (Gary telling Gore that he is “get[ting] through the cases”
to comment on the draft letter), as well as edits by senior
management altering the draft, see J.A. 605–607.
In other words, the comments and exchanges helped
formulate a statement that advanced and protected a balance of
departmental interests. Unlike in cases where we have found
the agency explanation wanting, here—when we consider the
whole record—“there was little mystery as to the who, what,
where, and how of the deliberative process and the role played
by [most of] the withheld material.” Judicial Watch, 20 F.4th
at 57 (internal quotation marks omitted).
The Center’s only argument to the contrary is that the Gary
Letter documents cannot be deliberative because they are post-
decisional. See Plaintiff’s Cross-Mot. for Summ. J. at 17,
Campaign Legal Center II, 2020 WL 2849909 (No. 18-cv-
01771), ECF No. 24 (“Post-hoc documents providing
justifications for a pre-decided policy” do not show policy
discretion and therefore play no consultative role); Plaintiff’s
Cross-Mot. for Summ. J. at 20, Campaign Legal Center I, 464
F. Supp. 3d 397 (No. 18-cv-01187), ECF No. 15 (similar).
Because we hold that the formulation of the final Gary Letter
itself involved the type of predecisional discretionary
22
judgments, consultations, and policy calls that the deliberative
8
process privilege protects, this argument fails.
3
Finally, the Center argues that permitting the withholdings
here undermines the goals of the deliberative process privilege.
Center Br. 9–13. Not so. The privilege protects “internal
dialogue about critical judgment calls aimed at advancing the
agency’s interests[,]” particularly around issues that spark
“vigorous public debate[.]” Reporters Comm., 3 F.4th at 363.
Disclosing internal deliberations about controversial issues,
like those at issue here, can be especially likely to endanger
“candid discussion within the agency.” Access Reports v.
Department of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)
(internal quotation marks and citation omitted). In such
circumstances, the exemption plays an important role in
protecting government employees who may feel pressure to
“carefully toe the party line” just when critical debate is needed
most. Dudman, 815 F.2d at 1569.
B
While most of the documents were properly withheld, the
record leaves unsettled the propriety of the Justice
Department’s redaction of five emails. So we remand as to
those documents for the district court to reconsider consistent
8
The Center asks that we remand the question of whether the
documents were deliberative because the district court did not
address it. Center Br. 8 n.1. We decline to do so in this case as to
most of the records at issue because our review is de novo, the record
is fully developed, and the Center’s arguments about the deliberative
and predecisional prongs are identical. See Porup v. CIA, 997 F.3d
1224, 1238–1239 (D.C. Cir. 2021).
23
with this opinion. On remand, the government will of course
“bear[] the burden of establishing that a claimed exemption
applies.” Citizens for Resp. & Ethics in Wash. v. Department
of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014).
In particular, several of the emails appear to postdate the
letter-drafting process, meaning they would not be exempt on
the current record. On December 12, 2017, Gore and Rachael
Tucker, an official in Justice Department leadership,
exchanged four emails, seemingly about the Gary Letter. See
Defendant’s Mot. for Summ. J., Ex. I, at 103, Campaign Legal
Center II, 2020 WL 2849909 (No. 18-cv-01771), ECF No. 22-
7. All four emails were sent between 6:27 p.m. and 6:58 p.m.,
and all are redacted in full. Id. Yet the Justice Department
appears already to have mailed the final Gary Letter to the
Commerce Department that afternoon. See id. at 104. The
government nowhere explained how these emails are
predecisional given its argument that the relevant final decision
for the documents at issue here was the final Gary Letter, which
had already been sent out. See Oral Arg. Tr. 5:5–8 (Justice
Department attorney answering the question “[W]hat is the
relevant decision to which these documents are pre-
decisional?” with “the official version of the [Gary] Letter that
was sent on [sic] December 2017”); see also Gov. Br. 12.
Similarly, on December 12th, Justice Department official
Gene Hamilton emailed Tucker with the subject line “RE:
Letter[.]” J.A. 442. The Justice Department’s declarations and
supporting documents do not identify when on December 12th
Hamilton sent this email, nor do they specify that it was sent
before the Gary Letter was finalized.
Because there are still “genuine dispute[s] over * * *
question[s] of material fact” as to these emails, the Justice
Department has failed to provide the “indispensable predicate
24
for a grant of summary judgment” on the current record. Hall
& Assocs., 956 F.3d at 630.
IV
We reverse the district court’s judgment as to all drafts of
the Gary Letter and most of the associated emails. We remand
the withholding decision regarding the five emails identified
above for further consideration consistent with this opinion.
So ordered.