O 1

2 3 4 5 6 7 United States District Court 8 Central District of California 9 10 11 NATIONAL PUBLIC RADIO, INC., et Case № 2:20-cv-08307-ODW (JCx) al., 12 Plaintiffs, 13 ORDER GRANTING IN PART AND v. DENYING IN PART 14

U.S. INTERNATIONAL CROSS-MOTIONS FOR SUMMARY

15 DEVELOPMENT FINANCE JUDGMENT [28] [29] 16 CORPORATION, Defendant. 17 18 I. INTRODUCTION 19 Plaintiffs National Public Radio, Inc., and Tom Dreisbach (collectively, “NPR”) 20 bring suit under the federal Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, 21 against Defendant International Development Finance Corporation (“DFC”). After 22 DFC announced its intent to loan $765 million to the Eastman Kodak Company to 23 support manufacturing ingredients for COVID-19 drugs, NPR requested related 24 records under FOIA. When DFC failed to timely respond, NPR initiated this action. 25 The matter is now before the Court on DFC’s Motion for Summary Judgment 26 and NPR’s Cross-Motion for Summary Judgment. (Def.’s Mot., ECF No. 28; Pls.’ 27 28 1 Mot., ECF No. 29.) For the reasons that follow, the Court GRANTS IN PART and 2 DENIES IN PART each of the two Motions.1 3 II. BACKGROUND 4 The parties agree on all material facts. The DFC is a U.S. government agency 5 created in early 2020 as successor to the Overseas Private Investment Corporation 6 (“OPIC”). (Def.’s Opp’n 11, ECF No. 30); see Byrd v. Global Recovery Grp., LLC, 7 No. SA-20-CA-1020-FB, 2021 WL 2678662, at *1 (W.D. Tex. Feb. 22, 2021). “As 8 part of its mission, like OPIC, [DFC] offers loan financing, among other things, to 9 United States investors for specified approved projects in the developing world.” 10 Byrd, 2021 WL 2678662, at *1. 11 On May 14, 2020, then-President Donald Trump signed an Executive Order 12 delegating authority to the DFC to make loans to private institutions to support the 13 government’s national response to the COVID-19 outbreak. (Compl. ¶ 2, ECF No. 1.) 14 Pursuant to this authority, DFC decided to loan $765 million to Kodak to support the 15 launch of Kodak Pharmaceuticals, which would produce “critical pharmaceutical 16 components.” (Id.) DFC employees prepared an op-ed announcing this decision, and 17 on July 28, 2020, the op-ed was published in the New York Post. (See Decl. Eric T. 18 Styles (“Styles Decl.”) ¶ 11, ECF No. 28-1; Def.’s Mot. 8.) After an inquiry from 19 Senator Elizabeth Warren and the initiation of a SEC investigation, on August 7, 20 2020, DFC placed the loan to Kodak on an indefinite hiatus. (Compl. ¶ 2.) 21 Amidst this flurry of activity, on July 31, 2020, NPR submitted to DFC a FOIA 22 request for three categories of records related to the loan to Kodak. (Compl. ¶¶ 4, 11; 23 Styles Decl. Ex. A.) As of September 10, 2020, DFC had not yet produced any 24 documents in response to NPR’s request, and NPR proceeded to file this suit. 25 (Compl. ¶¶ 14, 17.) 26 27

28 1 Having carefully considered the papers filed in connection with the motion, the Court deemed the matters appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 Since then, DFC has produced documents and amended its document 2 production several times, releasing a total of forty-four pages in whole or in part and 3 withholding sixteen pages. (Decl. Thomas R. Burke (“Burke Decl.”) ¶¶ 3–6, ECF 4 No. 29-1; Styles Decl. Ex. B (“Produced Records”).) On April 30, 2021, DFC filed its 5 Motion for Summary Judgment seeking a determination that it had fulfilled its 6 obligations under FOIA as to four challenged document categories covering all 7 documents remaining in dispute. (See Def.’s Mot.) NPR filed a combined Opposition 8 to DFC’s Motion and Cross-Motion for Summary Judgment, seeking a determination 9 that DFC failed in its obligations under FOIA. (See Pls.’ Mot. 2.) Thereafter, DFC 10 filed a combined Reply brief for its own motion and Opposition to NPR’s Cross- 11 Motion. (Def.’s Opp’n.) Finally, NPR filed a Reply. (Pls.’ Reply, ECF No. 31.) 12 NPR also filed, concurrently with its Cross-Motion, a request for in camera 13 review of documents to determine whether DFC may properly withhold the 14 documents under any FOIA exemption. (Req., ECF No. 29-6.) 15 III. LEGAL STANDARD 16 “Most FOIA cases are resolved by the district court on summary judgment, with 17 the district court entering judgment as a matter of law.” Animal Legal Def. Fund v. 18 U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 2016) (en banc). The “usual 19 summary judgment standard” applies in FOIA cases. Cameranesi v. Dep’t of Def., 20 856 F.3d 626, 636 (9th Cir. 2017). Summary judgment is appropriate only if, after 21 viewing the evidence in the light most favorable to the non-moving party, there are no 22 genuine disputes of material fact and the moving party is entitled to judgment as a 23 matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, 24 “if there are genuine issues of material fact in a FOIA case, the district court should 25 proceed to a bench trial or adversary hearing.” Animal Legal Def. Fund, 836 F.3d 26 at 990. The district’s court’s review of the agency’s decision is de novo, and the 27 agency bears the burden of persuasion. 5 U.S.C. § 552(a)(4)(B). 28 1 IV. DISCUSSION 2 “The basic purpose of FOIA is to ensure an informed citizenry, vital to the 3 functioning of a democratic society, needed to check against corruption and to hold 4 the governors accountable to the governed.” N.L.R.B. v. Robbins Tire & Rubber Co., 5 437 U.S. 214, 242 (1978). FOIA “focuses on the citizens’ right to be informed about 6 what their government is up to” by requiring the release of “[o]fficial information that 7 sheds light on an agency’s performance of its statutory duties.” U.S. Dep’t of Just. v. 8 Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989) (internal 9 quotation marks omitted). 10 “Upon request, FOIA mandates disclosure of records held by a federal agency 11 unless the documents fall within enumerated exemptions.” Dep’t of Interior v. 12 Klamath Water Users Protective Ass’n, 532 U.S. 1, 7 (2001) (internal citations 13 omitted); see 5 U.S.C. § 552(b). The Act provides nine narrowly construed 14 exemptions “reflect[ing] a recognition that ‘legitimate governmental and private 15 interests could be harmed by release of certain types of information.’” Am. Civil 16 Liberties Union of N. Cal. v. U.S. Dep’t of Just., 880 F.3d 473, 483 (9th Cir. 2018) 17 (quoting John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989)). An agency 18 may withhold only exempted information and must provide all “reasonably 19 segregable” portions of that record to the requester. 5 U.S.C. § 552(b). The agency 20 bears the burden to justify withholding under FOIA’s exemptions and to “establish 21 that all reasonably segregable portions of a document have been segregated and 22 disclosed.” Hamdan v. U.S. Dep’t of Just., 797 F.3d 759, 779 (9th Cir. 2015) (quoting 23 Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008)). 24 “Government agencies must submit an affidavit pursuant to Vaughn [v. Rosen,] 25 484 F.2d 820 [(D.C. Cir. 1973)], identifying the documents withheld, the FOIA 26 exemptions claimed, and a particularized explanation of why each document falls 27 within the claimed exemption.” Lahr v. Nat’l Transp. Safety Bd., 569 F.3d 964, 986 28 (9th Cir. 2009) (internal quotation marks omitted). An agency’s declarations are 1 given substantial weight in determining whether a FOIA exemption applies, and 2 agencies are not required to specify their objections to disclosure “in such detail as to 3 compromise the secrecy of the information.’” Bowen v. U.S. Food & Drug Admin., 4 925 F.2d 1225, 1227 (9th Cir. 1991). “Agency affidavits that are sufficiently detailed 5 are presumed to be made in good faith and may be taken at face value.” Hamdan, 6 797 F.3d at 779. 7 Here, the parties agree that only four document categories are at issue, and that 8 the at-issue documents implicate only FOIA Exemption 5. (Styles Decl. ¶ 8; Burke 9 Decl. ¶ 10.) Exemption 5 shields from disclosure “inter-agency or intra-agency 10 memorandums or letters that would not be available by law to a party other than an 11 agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The Supreme Court has 12 clarified that Exemption 5 operates to exempt documents that would be privileged in 13 the civil discovery context. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 14 (1975); see United States v. Weber Aircraft Corp., 465 U.S. 792, 800 (1984) (“[T]he 15 public is entitled to all such memoranda or letters that a private party could discover in 16 litigation with the agency.”). 17 The parties further agree that only one privilege within Exemption 5 remains at 18 issue: the deliberative process privilege. (Def.’s Mot. 5; Pls.’ Mot. 1); Pac. Fisheries, 19 539 F.3d at 1148 (confirming FOIA Exemption 5 incorporates deliberative process 20 privilege). DFC asserts that this privilege applies to all four categories of disputed 21 documents, (Def.’s Mot. 8–11), and NPR asserts it does not, (Pls.’ Mot. 9–18). At 22 trial, DFC would bear the burden of showing the privilege applies, Hamdan, 797 F.3d 23 at 779, and since a party’s burden on summary judgment is the same as what its 24 burden at trial would be, Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986), 25 resolution of both DFC’s Motion and NPR’s Cross-Motion comes down to the same 26 issue for the Court to decide: whether DFC has established the existence of the 27 deliberative process privilege shielding each category of documents from mandatory 28 disclosure. See id. at 322. If it has not, then as to that category, the Court denies 1 DFC’s Motion, grants NPR’s Cross-Motion, and orders disclosure. If it has, then the 2 Court proceeds to determine if there is a triable issue as to whether disclosure of the 3 documents would cause DFC reasonably foreseeable harm. 5 U.S.C. § 552(a)(8)(A). 4 A. Deliberative Process Privilege 5 The deliberative process privilege “protects from disclosure opinions and 6 recommendations on which governmental decisions are based.” Playboy Enters., Inc. 7 v. Dep’t of Just., 677 F.2d 931, 935 (D.C. Cir. 1982). Its purpose is “to enhance the 8 quality of agency decisions by protecting open and frank discussion among those who 9 make them within the Government.” Klamath Water Users, 532 U.S. 1, 8 (2001). 10 The privilege “rests on the obvious realization that officials will not communicate 11 candidly among themselves if each remark is a potential item of discovery and front 12 page news.” Id. 13 To show that the deliberative process privilege applies, it is DFC’s burden to 14 show that a record is both (1) “predecisional” and (2) “deliberative.” F.T.C. v. 15 Warner Commc’ns, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). “Documents are 16 ‘predecisional’ if they were generated before the agency’s final decision on the matter, 17 and they are ‘deliberative’ if they were prepared to help the agency formulate its 18 position.” U.S. Fish & Wildlife Serv. v. Sierra Club, 141 S. Ct. 777, 786 (2021); 19 Warner Commc’ns, 742 F.2d at 1161 (“[T]he document must be deliberative in nature, 20 containing opinions, recommendations, or advice about agency policies.”). 21 With these standards in mind, the Court considers the four at-issue categories of 22 documents in two groups, starting with all documents in Categories 1, 2, and 4. 23 B. Categories 1, 2, 4 24 Document Category 1 consists of drafts of the aforementioned op-ed the DFC 25 published in the New York Post announcing its loan to Kodak. According to Eric T. 26 Styles, administrative counsel in the Office of General Counsel of the DFC, these 27 drafts “are unsigned and unfinalized, and include editorial mark-ups, comments, 28 1 redline revisions, and comments made by DFC and inter-agency employees reflective 2 of the deliberative process.” (Styles Decl. ¶ 11.) 3 Document Category 2 consists of email correspondence about the New York 4 Post op-ed. Styles indicates these emails are “between interagency stakeholders 5 engaged in deliberative discussions regarding development and editing of the draft 6 op-ed documents” and are “predecisional to the final op-ed.” (Styles Decl. ¶ 13.) 7 Document Category 4 consists of email correspondence discussing “messaging, 8 themes, and engagement with media” related to the loan. The subjects of these emails 9 are (1) how to engage with the media and associated stakeholders about an upcoming 10 press event; (2) which officials would speak at the upcoming event; (3) messaging, 11 themes, and points to highlight in several upcoming media engagements regarding the 12 Kodak announcement; and (4) whether and how to respond to press queries regarding 13 the Defense Production Act’s grant of loanmaking authority to DFC. (Styles Decl. 14 ¶ 15.) 15 The parties agree that the documents in Categories 1, 2, and 4 do not precede 16 any substantive policy decision regarding any loan that DFC might have made in the 17 future, and that rather, these documents relate entirely to how DFC would announce 18 its decision about the Kodak loan to the public. (See Def.’s Opp’n 1 (characterizing 19 documents as “agency deliberations about transparency and public messaging”); 2 20 (“[T]hese documents . . . are discussing specific yet-to-be-made decisions about what 21 the messaging should be about the loan at issue.”); Pls.’ Mot. 11 (“[T]hese materials 22 are clearly public relations, i.e., the DFC ‘setting forth the reasons’ for its already- 23 made decision to make the loan.”).) Thus, the legal issue the parties’ Motions 24 ultimately raise is whether deliberations about how an agency will communicate an 25 already-made policy decision to the public are protected by the deliberative process 26 privilege. 27 Whether the Court follows Ninth Circuit precedent or resorts to “first 28 principles,” (Def’s Opp’n 3, Pls.’ Reply 5), the answer to this question is “no.” 1 “[P]ost-decisional records fall outside the deliberative process privilege if they follow 2 a final decision and are designed to explain a decision already made.” Lahr, 569 F.3d 3 at 981. Here, no one disputes that Categories 1, 2, and 4 are more in the character of 4 documents that “follow a final decision” (here, the decision to loan money to Kodak) 5 “and are designed to explain a decision already made” (here, in a New York Post 6 op-ed) rather than “documents prepared in a subsequent evaluation of the question 7 with the goal of confirming or rejecting . . . earlier conclusions.” Id. at 981; (Def.’s 8 Opp’n 2). This case stands in clear contrast to Lahr, where the challenged documents 9 were predecisional to the agency’s core policy function of making factual findings 10 about what happened during the fatal crash of TWA Flight 800. See id. at 983 (“[T]he 11 document . . . was clearly prepared for the specific purpose of aiding the agency in its 12 determination of the likely flight path of the aircraft following the explosion, a 13 determination central to the CIA’s task of explaining what the eyewitnesses actually 14 saw.”). Here, DFC’s draft op-eds do not aid it in making any policy decision and are 15 therefore not “predecisional” for purposes of the deliberative process privilege. See 16 also Maricopa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1094 (9th Cir. 17 1997) (“We are required to reject the government’s primary argument that a 18 continuing process of agency self-examination is enough to render a document 19 ‘predecisional.’”). 20 DFC confronts this issue head-on and argues that agency decisions regarding 21 public messaging should be subject to the deliberative process privilege. However, in 22 light of Lahr and Maricopa Audubon Society, courts in the Ninth Circuit have 23 repeatedly reached the opposite conclusion, finding that it is only when the agency is 24 deliberating substantive policy decisions that the deliberative process privilege applies 25 and refusing to apply the privilege when the deliberations do not precede 26 policymaking. See Council on Am.-Islamic Relations-Wash. v. U.S. Customs & 27 Border Prot., 492 F. Supp. 3d 1158, 1166 (W.D. Wash. 2020) (ordering release of 28 internal communications which “do not appear to have been prepared in order to assist 1 in the making of a decision, and instead relate to the release of a public-facing 2 statement describing events after a decision was made”); Chattler v. United States, 3 No. C-07-4040 MMC (EMC), 2009 WL 1313227, at *2 (N.D. Cal. May 12, 2009) 4 (observing, for purposes of deliberative process privilege, that “preparations related to 5 testimony before Congress or statements to Congress or the public (including press 6 releases) . . . do not seem to be decisions akin to policymaking”); see also Mansourian 7 v. Bd. of Regents of Univ. of Cal. at Davis, No. CIV S-03-2591 FCD EFB, 2007 WL 8 4557104, at *5 (E.D. Cal. Dec. 21, 2007) (finding documents predecisional to how 9 college officials would testify before legislature regarding Title IX compliance were 10 “not . . . contemplated by the privilege” and rather were “used to prepare for a post 11 hoc explanation of past actions”). 12 DFC cites to other courts, many of them in the D.C. Circuit, that regularly 13 exempt from FOIA disclosure requirements agency documents related to public 14 messaging. (Def.’s Opp’n 3 (“[T]hat public messaging is somehow not a sufficiently 15 substantive and important agency decision does not make it any less a decision.”)); 16 Am. Ctr. for Law & Just. v. U.S. Dept. of Just., 325 F. Supp. 3d 162, 171–72 (D.D.C. 17 2018) (collecting cases and finding an “overwhelming consensus” in D.D.C. “that the 18 privilege protects agency deliberations about public statements”). To the extent there 19 is a split of authority between the Ninth Circuit and the D.C. Circuit, this Court should 20 follow the circuit by which it is bound. In this circuit, the purpose of the deliberative 21 process privilege is not to protect government discussions in general but to protect 22 “frank discussion of legal or policy matters” in particular from public disclosure. 23 Maricopa Audubon Soc’y, 108 F.3d at 1092; Am. Trucking Ass’ns, Inc. v. City of Los 24 Angeles, No. CV 08-4920-CAS (CTx), 2009 WL 10673061, at *3 (C.D. Cal. Nov. 12, 25 2009) (defining deliberative process privilege as arising when the “process by which 26 [an agency’s] decisions and policies are formulated” is at issue). By DFC’s own 27 admission, the documents in Categories 1, 2, and 4 had nothing to do with the process 28 of formulating a policy or decision within DFC’s purview; they had to do with 1 deciding how to announce a policy decision already made. In the Ninth Circuit, this 2 observation is fatal to the viability of the deliberative process privilege, and FOIA 3 therefore mandates disclosure of these documents. 4 DFC argues that, because the documents in Category 1 are drafts of the op-ed, 5 they are predecisional to the final version of the op-ed, (Def.’s Mot. 8–9), but this 6 argument does not change the conclusion. While the draft nature of a document is 7 certainly a factor in determining whether a document is predecisional or deliberative, 8 Lahr, 569 F.3d at 983–84, here, the documents—draft or not—relate only to how DFC 9 would announce its decision to lend to Kodak. They are not predecisional to whether 10 DFC would in fact lend money to anyone, nor are they predecisional to any other 11 “legal or policy matter[]” within its purview. See Maricopa Audubon Soc’y, 108 F.3d 12 at 1092. 13 The Court finds that DFC does not meet its burden of showing the deliberative 14 process privilege applies to the documents in Categories 1, 2, and 4. Thus, FOIA 15 Exemption 5 exempts none of these documents from disclosure, and they must be 16 disclosed. As to Categories 1, 2, and 4, DFC’s Motion is DENIED and NPR’s Cross- 17 Motion is GRANTED. 18 C. Category 3 19 DFC describes Category 3 as consisting of three emails: one discussing 20 “anticipated topics of discussion for a pending meeting” (document A001) and two 21 containing “anticipated meeting agendas pertaining to the COVID-19 taskforce” 22 (documents A022 and A023). (Styles Decl. ¶ 14; see also id. Attachment B A022- 23 A023 (describing these as “COVID huddles”).) DFC released these emails in 24 redacted form, and it represents that the undisclosed material indicates “what would 25 be discussed at the meetings and . . . the actual underlying policies being developed 26 and discussed at those meetings.” (Id.) According to DFC, disclosure of the redacted 27 portions “would reveal opinions, ongoing prioritization decisions, and the content and 28 process of internal deliberations on these topics.” (Id.) For the following reasons, the 1 Court finds that the deliberative process privilege applies to documents A022 and 2 A023, but not to document A001. 3 1. Deliberative Process Privilege 4 In most cases, an agenda for a meeting of a government agency, where the 5 purpose of the meeting is to generally advance the purpose and fulfill the statutory 6 duty of the agency, will be both predecisional and deliberative because the agenda 7 assists in making the policy decisions to be considered at the meeting. See Ctr. for 8 Pub. Integrity v. Fed. Election Comm’n, 332 F. Supp. 3d 174, 180 (D.D.C. 2018) (“A 9 meeting agenda prepared before the meeting is predecisional and inherently 10 deliberative in that staff are suggesting the topics to be discussed at the meeting.”). 11 Applying this principle to document A001, DFC’s declaration indicates only that the 12 document contains “anticipated topics of discussion for a pending meeting.” (Styles 13 Decl. ¶ 14.) This is insufficient for the Court to conclude that document A001 is 14 either predecisional or deliberative. Without more information on the nature of the 15 meeting DFC was planning, the Court is without basis to conclude that the meeting 16 related to DFC’s core policymaking functions, as opposed to, say, upcoming press 17 conferences regarding a decision already made. If the meeting was only about the 18 DFC’s public messaging, then materials preparatory to that meeting were 19 predecisional only to public messaging and therefore not “predecisional” for purpose 20 of the privilege. (See § IV.B herein.) It is DFC’s burden to show the privilege 21 applies, and DFC fails in this burden. Disclosure of document A001 is required. 22 By contrast, DFC’s declaration is slightly more specific about documents A022 23 and A023, stating that they are “anticipated meeting agendas pertaining to the 24 COVID-19 taskforce.” (Styles Decl. ¶ 14.) The natural inference arising from this 25 evidence is that policy-related decision-making happens at DFC’s COVID-19 26 taskforce meetings, and NPR neither submits evidence nor raises arguments 27 suggesting otherwise. NPR argues that the agendas do not “reveal the formulation of 28 any particular policy,” (Pls.’ Mot. 17), but as the Supreme Court has cautioned, the 1 “emphasis on the need to protect pre-decisional documents does not mean that the 2 existence of the privilege turns on the ability of an agency to identify a specific 3 decision in connection with which a memorandum is prepared.” Sears, 421 U.S. 4 at 151 n.18. Thus, DFC’s declaration is sufficient to show that these agendas are both 5 predecisional to and deliberative of DFC’s policymaking functions. This is especially 6 true given that “[a]n agency’s substantive policy decisions are shaped to a significant 7 extent by the logistical decisions it makes”—including decisions embodied in meeting 8 agendas—“during the policymaking process.” Lemieux & O’Neill ex. rel. Las 9 Virgenes—Triunfo Joint Powers Auth. v. McCarthy, No. CV 16-00570-AB (Ex), 10 2017 WL 679652, at *5 (C.D. Cal. Jan. 27, 2017). 11 DFC sufficiently demonstrates that the two meeting agendas (documents A022 12 and A023) are covered by the deliberative process privilege. The Court proceeds to 13 determine whether DFC shows that, with reasonable foreseeability, it would be 14 harmed by disclosure of these meeting agendas. 15 2. Reasonably Foreseeable Harm 16 Pursuant to the 2016 amendments to FOIA, even if a government agency shows 17 an exemption applies, disclosure is nevertheless mandated unless the agency also 18 affirmatively explains how “doing so would reasonably harm an exemption-protected 19 interest.” Jud. Watch, Inc. v. U.S. Dep’t of Com., 375 F. Supp. 3d 93, 100 20 (D.D.C. 2019); Nat’l Day Laborer Org. Network v. U.S. Immigr. & Customs Enf’t, 21 486 F. Supp. 3d 669, 691 (S.D.N.Y. 2020); 5 U.S.C. § 552(a)(8)(A). 22 To show reasonably foreseeable harm, an agency must do more than 23 “perfunctorily state that disclosure of all the withheld information—regardless of 24 category or substance—would jeopardize the free exchange of information among or 25 between government officials.” Nat’l Day Laborer Org. Network, 486 F. Supp. 3d 26 at 691–92. At the same time, a “categorical approach” to describing the foreseeable 27 harm is permissible, so long as the proffered categories of harm provide the Court 28 1 with a sufficient evidentiary basis to find foreseeable harm to the deliberative process. 2 Rosenberg v. Dep’t of Def., 342 F. Supp. 3d 62, 79 (D.D.C. 2018). 3 Here, DFC’s declaration regarding the harm that would arise from disclosure of 4 the meeting agendas is sufficient to demonstrate that disclosure of the meeting 5 agendas would jeopardize the core deliberative process of DFC officials. According 6 to the declaration, these two agendas help DFC decide not only what would be 7 discussed at the meetings but also the “actual underlying policies” DFC developed and 8 discussed at those meetings. (Styles Decl. ¶ 14.) Furthermore, “[d]isclosure would 9 inhibit candid discussions and the ability of interagency stakeholders to broach 10 difficult topics.” (Id.) 11 “The deliberative process privilege reflects the commonsense notion that 12 agencies craft better rules”—or, here, craft better financial policy—“when their 13 employees can spell out in writing the pitfalls as well as strengths of policy options, 14 coupled with the understanding that employees would be chilled from such rigorous 15 deliberation if they feared it might become public.” Jud. Watch, Inc. v. Dep’t of Def., 16 847 F.3d 735, 739 (D.C. Cir. 2017). Applying this principle here, DFC can make 17 better policy when its employees are free to bring topics to their policymaking 18 meetings for discussion and deliberation without fear that the unpolished, unvetted 19 results of their efforts will one day be open to public scrutiny. In describing these two 20 agendas and the harm that would result from disclosure, DFC makes a sufficient 21 showing of foreseeable harm. 22 3. Conclusions for Category 3 23 For the foregoing reasons, the deliberative process privilege does not apply to 24 document A001. As to document A001, DFC’s Motion is DENIED, NPR’s 25 Cross-Motion is GRANTED, and disclosure is ordered. 26 By contrast, the deliberative process privilege does apply to documents A022 27 and A023, and DFC has shown as a matter of law that foreseeable harm would result 28 from further disclosure. As to documents A022 and A023, DFC’s Motion is 1 GRANTED, and NPR’s Cross-Motion is DENIED, and documents A022 and A023 2 need not be further disclosed. 3 D. Relief for Untimely Production 4 When NPR filed this suit, DFC had not yet produced any documents, and 5 accordingly, NPR’s Complaint focused primarily on the harm arising from DFC’s 6 delay in failing to produce any documents whatsoever. (See generally Compl.) In its 7 Cross-Motion, NPR now argues that it is entitled to a declaration that, as a matter of 8 law, DFC violated the timeliness requirements of FOIA when it waited until January 9 2021 to produce records responsive to NPR’s July 2020 request. (See Pls.’ Mot. 18.) 10 NPR’s contention is rejected for two reasons. First, NPR did not assert a claim 11 for untimeliness in its Complaint, nor has it amended its Complaint. Although the 12 Complaint contains language regarding the timeliness requirements of FOIA, the 13 Complaint could not have possibly asserted a separate, standalone claim for damages 14 for late production of documents already produced for the simple reason that no 15 documents had already been produced when NPR filed its Complaint. 16 Second, “an agency’s failure to comply with [FOIA’s] statutory deadlines is not 17 an independent basis for a claim.” Roseberry-Andrews v. Dep’t of Homeland Sec., 18 299 F. Supp. 3d 9, 20 (D.D.C. 2018); see Cmty. Ass’n for Restoration of the Env’t, 19 Inc. v. U.S. Env’t Prot. Agency, 36 F. Supp. 3d 1039, 1049 (E.D. Wash. 2014) (“That 20 the EPA’s determination was not made . . . until nearly a year after the request does 21 not necessarily make the EPA’s deficiency actionable under the FOIA.”). Instead, 22 “the impact of blowing [FOIA’s] 20-day deadline” is simply that the requester gains 23 the right to take his or her FOIA dispute to court. Elec. Priv. Info. Ctr. v. Dep’t of 24 Just., 15 F. Supp. 3d 32, 41 (D.D.C. 2014). 25 The Ninth Circuit does recognize that a FOIA requester states a claim by 26 alleging “that an agency policy or practice will impair the party’s lawful access to 27 information in the future.” Civ. Beat Law Ctr. for the Pub. Int., Inc. v. Ctrs. for 28 Disease Control & Prevention, 929 F.3d 1079, 1086 (9th Cir. 2019). NPR makes a 1 last-ditch effort in its Reply to argue that this is its theory of the case, (Pls.’ Reply 12), 2 but this effort is unavailing, as the Complaint in this matter is entirely devoid of any 3 allegations of DFC’s pattern or practice of untimely responding. 4 For these reasons, NPR’s Cross-Motion is DENIED to the extent NPR seeks 5 relief based solely on the untimeliness of DFC’s production. 6 E. In Camera Review 7 As a final matter, NPR requests in camera review of the documents at issue. 8 (Req.) The Court has discretion in determining whether to review documents in 9 camera. Flocker v. FBI, No. 10-06753-JAK, 2013 WL 12383752, at *4 (C.D. Cal. 10 Apr. 18, 2013). In camera review “is used exceedingly sparingly,” Poulsen v. Dep’t 11 of Def., 373 F. Supp. 3d 1249, 1280 (N.D. Cal. 2019), overruled on other grounds by 12 Animal Legal Def. Fund, 836 F.3d 987, and it “should not be resorted to lightly,” 13 Flocker, 2013 WL 12383752, at *4. 14 NPR’s request is moot as to Categories 1, 2, and 4, as well as to document 15 A001, because the Court is ordering disclosure of these documents. As for the 16 remaining documents, A022 and A023, based on the foregoing discussion, the Court 17 sees no need for in camera review. DFC’s declaration describes these documents with 18 sufficient particularity, and NPR does not argue that DFC’s descriptions provided the 19 Court with insufficient information to make a reasoned decision. NPR’s request for in 20 camera review is DENIED. 21 V. CONCLUSION 22 The Court’s determinations herein completely dispose of all remaining issues in 23 the action. The Court finds that no genuine disputes of material fact exist and both 24 parties are entitled to partial summary judgment as a matter of law on each of their 25 respective Motions. Each Motion is therefore designated as GRANTED IN PART 26 and DENIED IN PART. (ECF Nos. 28, 29.) 27 28 1 e As to document A001 and Categories 1, 2, and 4, DFC’s Motion is DENIED, 2 NPR’s Cross-Motion is GRANTED, and disclosure of all material withheld 3 pursuant to the deliberative process privilege is required. 4 e As to documents A022 and A023, DFC’s Motion is GRANTED, NPR’s 5 Cross-Motion is DENIED, and no further disclosure is required. 6 e NPR’s request for summary judgment in its favor on its putative claim for relief 7 for the untimeliness of DFC’s response is DENIED. 8 The Court will issue Judgment consistent with this Order. 9 10 IT IS SO ORDERED. 11 12 November 24, 2021 . 13 wa 4 lid ie A 15 OTIS D. V GHT, Il

UNITED STATES DISTRICT JUDGE

17 18 19 20 21 22 23 24 25 26 27 28