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Reporters Committee for Freedom of the Press v. FBI

Court of Appeals for the D.C. Circuit
3 F.4th 350 (2021)
ELI5:

Rule of Law:

Under the FOIA Improvement Act of 2016, an agency may withhold documents under the deliberative process privilege (Exemption 5) only if the documents are both predecisional and deliberative, and the agency can articulate a specific, reasonably foreseeable harm that would result from their disclosure, rather than relying on generalized or boilerplate assertions.


Facts:

  • In June 2007, an unknown individual emailed bomb threats to a high school in Washington state.
  • To identify the suspect, FBI agents created a fake news link purporting to be from the Associated Press and sent it to the suspect.
  • The suspect, a 15-year-old student, clicked the link, which secretly installed surveillance software that revealed his location to the FBI.
  • In 2014, documents revealing this media impersonation tactic became public, causing outrage among news organizations concerned about their credibility and independence.
  • The FBI faced significant public and congressional pressure to change its undercover policies regarding the impersonation of journalists.
  • FBI Director James Comey wrote a letter to the New York Times defending the tactic, while the Department of Justice Inspector General launched a review of the incident.
  • The Reporters Committee for Freedom of the Press and the Associated Press submitted FOIA requests seeking records regarding the impersonation tactic and related internal policies.
  • The FBI located responsive records but withheld numerous documents, claiming they were protected internal deliberations.

Procedural Posture:

  • News Organizations filed a complaint against the FBI and DOJ in the U.S. District Court for the District of Columbia.
  • The District Court granted summary judgment in favor of the government, ruling the search was adequate and withholdings were justified.
  • The News Organizations appealed to the U.S. Court of Appeals for the D.C. Circuit.
  • The D.C. Circuit reversed and remanded, finding the FBI's search for records inadequate.
  • On remand, the FBI released additional records but withheld others under Exemption 5; parties cross-moved for summary judgment.
  • The District Court granted summary judgment for the government on all withholdings.
  • The News Organizations appealed to the U.S. Court of Appeals for the D.C. Circuit.

Locked

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Issue:

Does the Freedom of Information Act's deliberative process privilege and the foreseeable harm standard permit the FBI to withhold documents regarding its media impersonation tactics, specifically internal emails, draft reports, factual accuracy comments, and draft presentations?


Opinions:

Majority - Judge Millett

Yes, regarding the internal emails discussing policy changes, but no regarding the draft reports, factual comments, and presentations. The court affirmed in part and reversed in part. To invoke Exemption 5, the government must prove the documents are predecisional and deliberative, and clearly demonstrate that disclosure would cause foreseeable harm. The court found that emails debating revisions to Director Comey's public letter and emails discussing new undercover policies were privileged because they reflected the give-and-take of decision-making during a policy crisis. The government also successfully showed foreseeable harm for these emails due to the sensitivity of undercover tactics. However, the court rejected the withholding of the 'Factual Accuracy Comments' because purely factual corrections are not deliberative. Furthermore, the court ordered the release of the draft Inspector General reports and draft PowerPoint slides. While the draft reports were privileged, the government failed to satisfy the 'foreseeable harm' requirement, offering only 'cookie-cutter' and 'boilerplate' assertions that did not link specific harms to specific documents. The PowerPoint slides were ordered released because they merely explained existing policy rather than debating new ones, meaning they were not deliberative.



Analysis:

This decision is significant because it rigorously enforces the 'foreseeable harm' standard introduced by the FOIA Improvement Act of 2016. The court made it clear that agencies can no longer rely on generic assertions that disclosure would 'chill' internal candor to justify withholding documents under Exemption 5. Agencies must now provide a focused, concrete demonstration of why releasing specific information would damage the deliberative process. Additionally, the ruling reinforces the distinction between 'deliberative' materials (opinions, recommendations) and 'factual' materials or those that merely explain existing policy, which generally must be disclosed. This places a higher burden of proof on federal agencies in future FOIA litigation.

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