Georgia v. U.S. Dep't of Justice

657 F.Supp.3d 1

GEORGIA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF JUSTICE, Defendant.

Case No. 1:21-cv-03138 (TNM)

United States District Court, District of Columbia

Signed February 20, 2023

Brian J. Field, Gene C. Schaerr, Schaerr Jaffe LLP, Washington, DC, for Plaintiffs.

Rebecca Michelle Kopplin, United States Department of Justice, Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. McFADDEN, United States District Judge

Georgia revised its election procedures following the 2020 presidential election. Soon after, the Department of Justice began working with private organizations and individuals to block the changes through multifaceted litigation. Concerned, Georgia submitted a Freedom of Information Act (FOIA) request to understand the depth the Department's collaboration with third parties. DOJ produced many documents but withheld some under an exemption to FOIA that protects certain internal agency records from disclosure.

This case does not concern the merits of Georgia's election laws. Rather, it presents the narrow question of whether FOIA's internal deliberation privilege extends to documents shared with non-governmental litigants. Because DOJ has not met its burden to show that the withheld emails fall within an exemption to FOIA, the Court will grant Georgia summary judgment.

I.

This is a lawsuit about eight lawsuits. Following the 2020 elections, Georgia enacted the Election Integrity Act of 2021, or Senate Bill 202 ("SB 202" or "the Act"). According to Georgia, "[t]he changes made in this legislation . . . are designed to address the lack of elector confidence in the election system on all sides of the political spectrum, to reduce the burden on election officials, and to streamline the process of conducting elections in George by promoting uniformity in voting." SB 202 § 2(4). But according to DOJ and various private entities, the law unduly restricts voting rights in violation of various federal laws.

In total, nearly 60 private parties sued Georgia challenging the Act. They include the Georgia NAACP, VoteAmerica, the Georgia Advancing Progress Political Action Committee, several churches, individuals, and even a sorority chapter. Within two months of enactment, these parties formed seven groups. And each group filed a separate suit in the Northern District of Georgia.¹ DOJ then filed its own lawsuit challenging parts of the Act. See United States v. Georgia, No. 21-cv-2575 (N.D. Ga. filed June 25, 2021) (ECF No. 1). Afterward, DOJ and the private plaintiffs began collaborating in their litigation against SB 202. See Def.'s Mot. for Summ. J. (Def.'s MSJ) at 2-3, ECF No. 14-1.

In July 2021, DOJ and plaintiffs' counsel in seven of the eight cases exchanged an email stating that the parties "share a common interest in the successful prosecution of this litigation, and that they may share (but are not required to share) privileged communications and other litigation material between and among them without waiving attorney-client privilege, the work product protection or any other privilege or protection." Decl. of John A. Russ, IV (Russ Decl.) ¶ 8 & Ex. 2, ECF No. 14-4. That email noted that the agreement included "any other counsel associated with [the recipients], in the suits they have filed challenging the Georgia law known as SB 202." Id. Later, plaintiffs in all the lawsuits entered into a formal common interest agreement with DOJ. Id. ¶ 10 & Ex. 3.

Although each lawsuit challenges SB 202, DOJ and the private plaintiffs adopted different strategies. The various lawsuits differed in their challenges and requested relief. DOJ alleged only discriminatory purpose under § 2 of the Voting Rights Act. See Def.'s Resp. to Pl.'s Statement of Undisputed Material Facts (Def.'s SMF) ¶¶ 17-18, ECF No. 18-2. The private organizations each brought various constitutional claims. See id. ¶ 18. And some groups alleged violations of other federal statutes, including the Americans with Disabilities Act, the Rehabilitation Act, and the Civil Rights Act of 1964. See id. Two of the private complaints did not include claims under the Voting Rights Act at all. See id. Those that did bring § 2 claims argued for liability based on discriminatory effects, but DOJ argued for liability based solely on discriminatory intent. See id. ¶¶ 17, 19.

Georgia moved to dismiss each case, and the Northern District of Georgia denied those motions. Afterward, the district court consolidated six of the eight cases, including DOJ's, for discovery purposes. See Order at 9, In re Georgia Senate Bill, No. 21-mi-55555 (N.D. Ga. Dec. 23, 2021) (Russ. Decl., Ex. 4) (reasoning that the actions involve "mostly the same facts and legal issues"). But two of the cases were not consolidated. The Northern District found that "there are important distinctions between" those cases and the consolidated cases. Id. at 7. And it found that consolidation could prejudice those plaintiffs with "burdensome discovery unrelated to their claims." Id.

Now to the substance of this case. Georgia submitted a FOIA request to DOJ, seeking records related to DOJ's suit challenging SB 202. See FOIA Request, Decl. of K. Kagle (Kagle Decl.), Ex. A, ECF No. 14-5. Relevant here, Georgia requested: "All communications discussing [SB 202] exchanged between DOJ personnel and the following individuals or representatives of the following non-governmental entities from November 3, 2020, through the date of the search."² Id. at 2. The request named 62 organizations and individuals, almost all of whom are plaintiffs or plaintiffs' counsel in the various suits against SB 202. Id. at 2-4; see Russ Decl. ¶ 18.

After DOJ failed to respond within the statutory period, Georgia sued. See Compl. ¶¶ 24-28, ECF No. 1. DOJ then conducted searches and processed potentially responsive records. Russ Decl. ¶ 21. One division produced 23 pages with redactions under Exemption 6. Decl. of Vanessa Brinkman (Brinkman Decl.) ¶ 9-10, ECF No. 14-6. And another produced 596 pages in full and 282 pages with redactions under FOIA Exemptions 5, 6, and 7. Kagle Decl. ¶ 28; see id., Ex. E (Vaughn index). That division also withheld 112 pages in full under Exemption 5. See id. ¶ 30; Vaughn Index. Georgia now challenges some of DOJ's withholding under Exemption 5. It does not dispute the adequacy of the searches or the Exemption 6 and 7 withholdings.

II.

FOIA requires federal agencies to disclose nonexempt information to the public upon request. See, e.g., Jud. Watch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008). FOIA exemptions "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective." Dep't of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (cleaned up). In line with that policy, courts construe FOIA exemptions "narrowly" and consider their applicability de novo. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).

Agencies have the burden of showing that documents fall into one of the enumerated exemptions. See id.; 5 U.S.C. § 552(a)(4)(B). An agency may carry its burden through affidavits alone. Wolf, 473 F.3d at 374. But an agency fails to meet its burden when the record contains contradictory evidence. See id. Likewise, an agency loses if its affidavits fail to "describe the justifications for nondisclosure with reasonably specific detail." Id. (cleaned up).

Summary judgment is proper if "there is no genuine dispute of any material fact" so that the "movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court reviews the record de novo. 5 U.S.C. § 552(a)(4)(B). And it views the facts and draws all inferences "in the light most favorable to the requester." Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984). Most FOIA cases resolve on summary judgment. See Evans v. Fed. Bureau of Prisons, 951 F.3d 578, 584 (D.C. Cir. 2020).

III.

Georgia argues that DOJ improperly withheld its communications with the private plaintiffs under Exemption 5.³ That exemption protects from disclosure "inter-agency or intra-agency memorandums or letters which 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); see also DOI v. Klamath Water Users Prot. Ass'n, 532 U.S. 1, 6, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001). Georgia argues that Exemption 5 does not apply for two reasons. First, the communications sought are not properly considered "inter-agency" or "intra-agency." Second, DOJ has not shown that it made those communications under a common interest agreement with a common legal interest. Circuit precedent and FOIA's text teach that Georgia is correct on both scores.

A.

First, the text. The Court starts with "a careful examination of [FOIA's] ordinary meaning and structure." Food Mktg. Inst. v. Argus Leader Media, — U.S. —, 139 S. Ct. 2356, 2364, 204 L.Ed.2d 742 (2019) (interpreting FOIA exemption); see also Citizens for Responsibility & Ethics in Wash. (CREW) v. DOJ, 58 F.4th 1255. 1263 (D.C. Cir. 2023) ("Our consideration of [a FOIA exemption] starts with its text."). Exemption 5 shields from disclosure certain "inter-agency or intra-agency memorandums or letters." 5 U.S.C. § 552(b)(5). With certain exceptions not relevant here, FOIA defines "agency" to mean "each authority of the Government of the United States." Id. § 551(1). This "includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government[,] . . . or any independent regulatory agency." Id. § 552(f); see also Klamath, 532 U.S. at 9, 121 S.Ct. 1060.

Though FOIA defines "agency," it does not define "inter-agency or intra-agency." Thus, the Court "ask[s] what that term's ordinary, contemporary, common meaning was when Congress enacted FOIA in 1966." Food Mktg. Inst., 139 S. Ct. at 2362. "Inter" means "between" or "among." Webster's Third New International Dictionary of the English...