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National Association for Advancement of Colored People v. Bureau of The Census

United States District Court, D. Maryland

July 16, 2019

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs,
v.
BUREAU OF THE CENSUS, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Timothy J. Sullivan United States Magistrate Judge.

         This Memorandum Opinion and Order addresses the privilege claims that Defendants have asserted in connection with Plaintiffs' document production requests.[1] The Court has considered the parties' arguments and evidentiary submissions, which are contained in ECF Nos. 87, 88, 127, and 130, and concludes that no hearing is necessary. See Loc. R. 105.6. For the following reasons, the Court finds that Defendants' privilege assertions are without merit. Defendants will be required to produce the withheld documents to Plaintiffs.

         Previously, the Court entered a Memorandum Opinion and Order (ECF No. 64) granting in part and denying in part Defendants' motion to dismiss. Thereafter, the Court permitted the parties to proceed with discovery. (See ECF Nos. 85 & 89.) At the Court's invitation, the parties submitted brief letters explaining their respective positions regarding certain documents (the “Spreadsheets”) that Defendants had withheld from production to the Plaintiffs based on the deliberative process privilege. (ECF Nos. 87 & 88.) Later, after consulting with the parties, the Court directed the parties to submit two-page letters further refining their positions on the privilege issues. The Court also directed the Defendants to file their privilege log and any evidentiary support necessary to sustain their assertion of privilege. (ECF No. 125 at 2-3.) Finally, the Court directed Defendants to transmit to chambers a copy of the Spreadsheets to allow for in camera review if necessary. (Id.) The parties' two-page letters are filed at ECF Nos. 127 and 130.

         The parties largely agree on the scope of the deliberative process privilege. This privilege “is designed to protect the quality of administrative decisionmaking by ensuring that it is not done ‘in a fishbowl.'” City of Virginia Beach, Va. v. U.S. Dept. of Commerce, 995 F.2d 1247 (4th Cir. 1993) (quoting Environmental Protection Agency v. Mink, 410 U.S. 73, 87 (1973)). The privilege “encourages free-ranging discussion of alternatives; prevents public confusion that might result from the premature release of such nonbinding deliberations; and insulates against the chilling effect likely were officials to be judged not on the basis of their final decisions but for matters they considered before making up their minds.” Id. (internal quotation marks omitted). It is thought that the privilege helps to ensure that a decisionmaker receives “the unimpeded advice of his associates.” Florida House of Representatives v. U.S. Dep't of Commerce, 961 F.2d 941, 947 (11th Cir. 1992) (emphasis in original) (citing Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340 (1979)). It does so by providing “assur[ance] that subordinates within an agency will feel free to provide the decisionmakers with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism.” Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).

         “To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment.” Ethyl Corp v. U.S. E.P.A., 25 F.3d 1241, 1248 (4th Cir. 1994) (emphasis in original) (quoting Petroleum Info. Corp. v. United States Dep't of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992)). To qualify for withholding under the deliberative process privilege, a document must be both “predecisional” and “deliberative.” Petroleum Info. Corp., 976 F.2d at 1434. A document is predecisional if it was “‘prepared in order to assist an agency decisionmaker in arriving at his decision,' rather than to support a decision already made.” Id. (quoting Renegotiation Bd. v. Grumman Aircraft, 421 U.S. 168, 184 (1975)). A document is “deliberative” if it “reflects the give-and-take of the consultative process by revealing the manner in which the agency evaluates possible alternative policies or outcomes.” Id. (internal quotation marks omitted). Deliberative material reveals “the manner in which the agency evaluates possible alternative policies or outcomes.” City of Virginia Beach, 995 F.2d at 1253; see also Solers, Inc. v. Internal Revenue Serv., 827 F.3d 323, 329 (4th Cir. 2016).

         In determining whether a document is protected by the deliberative process privilege, courts consider whether the disclosure of that document would be likely to undermine the purposes of the privilege. Coastal States, 617 F.2d at 866. Where the contents of a document are “so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency, ” the document is likely to be privileged. Id. “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.” Id. (quoting United States v. Nixon, 418 U.S. 683, 705 (1974)). Conversely, “[c]ourts have typically required disclosure of purely factual material, presumably because the prospect of disclosure is less likely to make an advisor omit or fudge raw facts, while it is quite likely to have such an effect on materials reflecting deliberative or policy-making processes.” Quarles v. Dep't of Navy, 893 F.2d 390, 392 (D.C. Cir. 1990) (internal citations and quotation marks omitted). There are other characteristics that tend to be held by privileged documents. Documents that provide recommendations or alternative suggestions, or which “weigh[] the pros and cons of agency adoption of one viewpoint or another” are likely to be privileged. Id. But if the suggestion contained in a document “is adopted, formally or informally, as the agency position on an issue, ” or if it is “used by the agency in its dealings with the public, ” the document may lose its privileged status. Id.

         Given the importance that the context of a document's creation plays in determining whether it is protected by the deliberative process privilege, and the somewhat circular test used for determining whether a document is privileged, prior cases “are of limited help . . . because the deliberative process privilege is so” fact-specific. Id. at 867. Nonetheless, an examination of other cases illustrates how courts have analyzed the privilege under similar circumstances.

         In Coastal States, the D.C. Circuit considered whether memoranda from regional counsel within the Department of Energy were protected from disclosure by the deliberative process privilege.[2] 617 F.2d at 858. The memoranda at issue were sent by regional counsel to auditors working in the agency's field offices. They were transmitted “in response to requests for interpretations of regulations within the context of particular facts encountered while conducting an audit of a firm.” Id. While recognizing that the memoranda bore certain hallmarks common to documents protected by the deliberative process privilege, the court focused on the lack of anything “subjective or personal about the memoranda.” Id. at 868. The court succinctly explained its analysis of the memoranda:

The documents do not contain subjective, personal thoughts on a subject, so public knowledge of the documents will not subject the writer either to ridicule or criticism. Nor do they discuss the wisdom or merits of a particular agency policy, or recommend new agency policy, raising the possibility that their disclosure would mislead the public; rather they simply explain and apply established policy.

Id. at 869. Responding to the agency's argument that its regional attorneys would be less candid in the future if the memoranda were disclosed, the court stated that it was “unable to find [in any of the memoranda] any statement which could be described as ‘candid.'” Id. The court saw “no possibility whatsoever that an attorney performing this job would be less ‘frank' or ‘honest' if he or she knew that the document might be made known to the public.” Id. This is because “there is little to be frank or honest about when explaining what date a transaction occurs under [the regulations] or whether [the regulations] permit[] a buyer and seller to agree to a price higher than that set by the agency.” Id. The contents of the memoranda were not purely “factual, ” but their inclusion of legal opinions and advice did not grant them protection under the deliberative process privilege. To arrive at this conclusion, the court focused on the likely consequence of disclosure. The court concluded that because disclosure of the memoranda would be unlikely to cause any scandal or embarrassment, their protection under the deliberative process privilege would not promote the purpose and policy of that privilege.

         In Quarles, the D.C. Circuit considered whether certain cost estimates were protected from disclosure by the deliberative process privilege. 893 F.2d at 390. The cost estimates were “prepared by Navy officials in the course of the Navy's selecting homeports for ships in a new battleship group.” Id. at 391. The court noted that typically “the fact/opinion distinction offers a quick, clear, and predictable rule of decision for most cases” involving the deliberative process privilege. Id. at 392 (internal quotation marks omitted). While opinions are protected by the privilege, facts are not. Still, not everything that appears to be a fact can be characterized that way in the context of the deliberative process privilege. For instance, although “[n]umbers have a surface precision that may lead the unsophisticated to think of them as fixed, ” they are sometimes derived “from a complex set of judgments” and “partake of just that elasticity that has persuaded courts to provide shelter for opinions generally.” Id. at 393. The court affirmed the district court's finding that disclosure of the cost estimates “would likely make future researchers highly reluctant to express their candid opinions, particularly where such opinions may later prove controversial.” Id. (internal quotation marks omitted). The court explained:

If a study team found significant potential savings in deploying the battleship group at a finalist port otherwise deemed satisfactory, disclosure of the finding surely would tend to undermine the acceptability - among taxpayers - of forsaking that option. Yet the Navy might have reasons for rejecting the seemingly cheaper option, perhaps strategic, perhaps political. Anticipating this scenario, high officials might be inclined either not to call for cost estimates, or to call only for fuzzy ones expressed as wide ranges. The increased tendency to fudge would increase the sloppiness (or decrease the precision) of government decisionmaking. In an ideal world not only officials but also the public would receive such analyses. But the deliberative process exemption rests on the premise that if both (nominally) can get them, neither will: too many analyses will be stillborn or wishy-washy.

Id. (internal citations omitted).

         In Petroleum Info. Corp., the D.C. Circuit rejected the Bureau of Land Management's withholding under the deliberative process privilege of a computer database comprised of information about public lands drawn exclusively from publicly available documents. 976 F.2d at 1436. The purpose of the database was to consolidate records from a variety of sources so that the information would ultimately be available to the public in one place. Id. at 1432. The creation of this database was an “essentially technical and facilitative” task “to organize public records in a more manageable form, and to correct any error [found] in the process.” Id. at 1437. At the time that the FOIA request for the database was made, the database was still in draft format. The court found that the database was not protected by the deliberative process privilege because the information was largely already publicly available and because the estimates and error corrections it contained (which were not publicly available at the time) were not associated with any “significant policy decision.” Id. at 1437 (emphasis in original). The court distinguished the discretionary tasks associated with creating the database from the “political concerns implicated in locating military bases that figured in Quarles, . . ., or the interpretation of ‘complex and controversial events” critical to the rewriting of official histories.'” Id. (quoting Russell v. Department of the Air Force, 682 F.2d 1045 (D.C. Cir. 1982)).[3] Noting that even “mundane” tasks within an agency “could be said to reflect the exercise of agency discretion in some sense, ” the court explained that for documents to be protected by the deliberative process privilege, “the kind and scope of discretion involved must be of such significance that disclosure genuinely could be thought likely to diminish the candor of agency deliberations in the future.” Id. at 1436 n.8. The court concluded that the withheld database did not “involve the breadth of discretion, and ...


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