Campaign Legal Ctr. v. U.S. Dep't of Justice

34 F.4th 14

CAMPAIGN LEGAL CENTER, Appellee

v.UNITED STATES DEPARTMENT OF JUSTICE, Appellant

Campaign Legal Center, Appellee

v.United States Department of Justice, Appellant

No. 20-5233

No. 20-5234

United States Court of Appeals, District of Columbia Circuit.

Argued September 15, 2021

Decided May 17, 2022

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.

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 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, 96 S.Ct. 1592, 48 L.Ed.2d 11 (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 ., 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. , ––– U.S. ––––, 141 S. Ct. 777, 785, 209 L.Ed.2d 78 (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, Roebuck & Co. , 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ).¹

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 , ––– U.S. ––––, 139 S. Ct. 2551, 2575, 204 L.Ed.2d 978 (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 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" 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...