Filed December 1, 2016
3). As discussed above, this type of factual/scientific information generated during the Section 7 consultation process is not deliberative, see supra Section I.A at 16-19; see also, e.g., Greenpeace, 198 F.R.D. at 543, and, to the extent that there may be deliberative information in the document, all non- exempt information that can be reasonably segregated must be separated and disclosed, see Section I.C at 27-30; see also Mink, 410 U.S. at 91. The Services have not met their burden of explaining why these technical documents fall within the privilege and that there is no reasonably segregable non-exempt information contained therein.6 5 The following documents, referenced by Vaughn index number, indicate that they are or contain RPAs: FWS 279, 308, 555; NMFS 0.
Filed February 16, 2010
See Sears, Roebuck, 421 U.S. at 151-52; 95 S. Ct. at 1517. Mink, 410 U.S. at 88, 93 S. Ct. at 837. The deliberative process privilege does not protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.
Filed October 31, 2016
For 50 years, FOIA has served the goal of providing “access to official information long shielded unnecessarily from public view[.]” Mink, 410 U.S. at 80 (superseded by statute on other grounds). And, as the DOC itself has publicly acknowledged, access to government data is essential to the public knowledge necessary for the free exchange of ideas and information.
Filed October 31, 2011
The Supreme Court has upheld this distinction, recognizing that “Virtually all of the courts that have thus far applied Exemption 5 have recognized that it requires different treatment for materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.” EPA v. Mink, 410 U.S. at 89. The D.C. Circuit follows the fact / opinion distinction.
Filed October 20, 2011
This would be a radical expansion of Exemption 5, and Case 1:11-cv-00945-ABJ Document 15 Filed 10/20/11 Page 10 of 17 11 would be directly contrary to FOIA’s intended narrow interpretation of exemptions. EPA v. Mink, 410 U.S. at 89. C. Even if the Court Finds that Portions of the Documents Are Protected Under the Deliberative Process Privilege, the Unprotected Factual Portions Are Segregable and Should Be Released Even if the Court finds that some sections of the records are properly withheld under Exemption 5, all segregable portions must still be released.
Filed December 10, 2008
A construction of the Exemption 5 threshold requirement to preclude reliance on these privileges would at minimum present serious separation of powers difficulties, and indeed would, we believe, render FOIA as applied unconstitutional. See Mink, 410 U.S. at 83 (“Executive privilege may” “ impose [limitations] upon . . . congressional ordering” in FOIA); Ass’n of Am. Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 910 (D.C. Cir. 1993) (“FOIA’s exemption [for the President’s immediate personal staff] may be constitutionally required to protect the President’s Case3:08-cv-02997-JSW Document29 Filed12/10/08 Page21 of 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14Defs’ Notice of Consol. Mtn for Summary Judgment; Mem.
Filed May 23, 2017
The deliberative process privilege protects agencies from being “forced to operate in a fishbowl.” EPA v. Mink, 410 U.S. 73, 87 (1973) (quotations omitted). And it applies when “production of the contested document would be injurious to the consultative functions of government that the privilege of nondisclosure protects.” Id. Thus, as the Assessment to Refer was properly withheld pursuant to the deliberative process privilege and Exemption 5 of FOIA, Defendant is entitled to judgment as a matter of law.
Filed May 22, 2017
These facts would generally be available for discovery, and their release usually would not risk chilling agency deliberations. Mink, 410 U.S. at 87-88; CREW v. DHS, 648 F.Supp.2d 152, 158-59 (D.D.C. 2009). Nor does the status of a “draft” record presumptively exempt a record from release.
Filed April 4, 2017
These facts would generally be available for discovery, and their release usually would not risk chilling agency deliberations. Mink, 410 U.S. at 87-88; CREW v. DHS, 648 F.Supp.2d 152, 158-59 (D.D.C. 2009). Nor does the status of a “draft” record presumptively exempt a record from release.
Filed March 28, 2017
E.g., Vaughn v. Rosen, 523 F.2d 1136, 1143–44 (D.C. Cir. 1975) (the privilege extends to information that is “a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters”) Notably, the privilege does not protect factual information. EPA v. Mink, 410 U.S. 73, 91 (1973) (explaining the privilege does not extend to “factual material otherwise available on discovery merely [on the basis that] it was placed in a memorandum with matters of law, policy, or opinion”); Hajro v. U.S. Citizenship & Immigration Servs., No. 08-1350, 2011 U.S. Dist. LEXIS 117964, at *44 (N.D. Cal. Oct. 12, 2011) (requiring agency to “isolate the [specific] factual information requested and disclose it”). Defendants invoke exemption b(5) to withhold complaint summaries, complaint assistance forms, and complaint closure memos, which, based on Plaintiffs’ review of other produced documents, likely consist largely of factual information.