Freedom Watch, Inc. v. National Security Agency , 197 F. Supp. 3d 165 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FREEDoM WATCH, INC.,
Plainriff,
v. Civil Case No. 14-1431 (RJL)
NATIONAL SECURITY AGENCY, et al.,
FILED
JuL-72o1s
MEM@R NDuM oPn~uoN
_ ClarkU.S D`t':&g g
(July 2016) [Dkt. # 321 courts m rnt'i)i§iri.:rg'?"i':n'»i.ittti,i@
Plaintiff Freedom Watch, lnc. brought this action under the Freedom of
Defendants.
'~n_/\/\J\y\./%/\./\¢/\/
Information Act ("FOIA"), see 5 U.S.C. § 552, seeking information related to the August
6, 20ll shoot-down of a military helicopter in Afghanistan. Currently before the Court is
defendants’ Motion for Summary Judgrnent. See Defs.’ Mot. for Summ. J. [Dkt. # 32].
Having considered the parties’ pleadings, relevant laW, and the entire record of this case,
the Court GRANTS defendants’ Motion for Summary Judgment.
BACKGROUND
On July 21 , 2014, plaintiff Freedom Watch sent a multi-part FOIA request to the
defendants, Central intelligence Agency ("CIA") and Department of Defense ("DoD").
Wilson Decl. ("CIA Deel.") il 5 [Dkt. # 32-1]; Herrington Decl. ("DoD Decl.") 11 3 [Dkt.
# 32-2].' The FOIA request sought the production of agency records relating to an
' Plaintiff also submitted the FOlA request to former defendant National Security Agency ("NSA").
Compl. 11 5. The NSA is no longer a party since I granted its motion to dismiss based on the plaintiffs
August 2011 CH-47 Chinook helicopter crash in Afghanistan that resulted in the deaths
of 38 individuals. On August 2l, 2014, Freedo1n Watch filed this lawsuit against the
defendants seeking to compel disclosure of the requested records. See generally Compl.
[Dkt. # l], Since then, CIA and DoD have conducted searches for responsive records and
filed a series of status reports apprising the plaintiff and the Court of the production. See,
e.g., Status Report, May 8, 2015 ("First Status Report") [Dkt. # 25]; Status Report, Nov.
l l, 2015 ("Second Status Report") [Dkt. # 31]. On l\/lay 8, _2015 defendants reported
they had located several dozen responsive -docu-ments- to be r-ev-iew-ed, see First--St-a»tus-
Report, and on November ll, 2015 defendants reported completion of the production of
responsive, non-exempt materials, see Second Status Report. CIA and DoD detailed their
search for responsive records and exemptions claimed in two respective declarations: one
from Mary E. Wilson, Acting information Review Officer for the Litigation information
Review Office at the CIA, see CIA Decl., and the other from l\/lark Herrington, Associate
Deputy General Counsel in the Office of General Counsel of DoD, see DoD Decl.
ln Ms. Wilson’s declaration she avers that CIA conducted a search for responsive
records in consultation with Agency officials knowledgeable about the Agency’s record-
keeping practices to ascertain all locations reasonably likely to possess responsive
records. CIA Decl. il 9. By letter dated August 21, 2014, CIA advised the plaintiff that
the information sought "would fall under the auspices of the Depart1nent of Defense." Ia’.
il 6. On May l2, 2015, CIA produced two redacted responsive documents. Id. 11 7. On
failure to exhaust administrative remedies. See l\/lem. Op., Sept. 30, 20l5 [Dkt. # 29]. When I refer to the
defendants, 1 refer to remaining defendants CIA and DoD.
‘-‘.`§
B'-»'
Assistant Secretary of Defense, and U.S. Air Force Colonel John Devillier, and fits
comfortably within the exemption see D0D Decl. W 5, 18-21. DoD withheld as
deliberative portions of three e1nails regarding Mr. Reid’s anticipated testimony, as the
release thereof would compromise "the ability of DOD personnel to provide candid
advice to officials in anticipation of their testimony . . . ." Ia’. il 20. "Internal
communications regarding how to respond to media and Congressional inquiries have
repeatedly been held to be protected under the deliberative process privilege[,]" and these
withholdings are no different. Juclicial Watch, Inc. v. CFPB, 60 F. Supp. 3d l, 9 (D.D.C.
2014). DoD also withheld draft versions of testimony by Colonel Devillier and Mr. Reid,
along with comments and recommendations regarding l\/lr. Reid’s testimony, while
providing plaintiff with the final versions of their testi1nony. D0D Decl. il 18. These
drafts of congressional testimony were also properly withheld as deliberative. See People
for the Am. Way Fed’n .v. Nat’l Park Serv., 503 F. Supp. 2d 284, 303 (D.D.C. 2007)
D0D properly withheld as well personal identifying information pursuant to
Exemption 6. This exemption protects from disclosure information about individuals in
"personnel and medical and similar files" when the disclosure of such information
"would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C.
§ 552(b)(6). Exemption 6 requires a court to balance the privacy interest served by
withholding information and the public interest, if any, that would be advanced by
disclosing it. Painting & Drywall Work Pres. Fund, Inc. v. Dep’t olfHous. & Urban
Dev., 936 F.2d 1300, 1302 (D.C. Cir. 1991). The requester bears the burden to articulate
ll
a significant public interest sufficient to outweigh the privacy interest. See Nat ’l Archz'ves
and Records Admz`n. v. Favz`sh, 541 U.S. l57, 172 (2()04); see also Smz`th v. Dep ’t of
Labor, 798 F. Supp. 2d 274, 285 (D.D.C. 201 l).
D0D’s unrebutted Exemption 6 argu1nent prevails. Our Circuit Court has
recognized that "the privacy interest of an individual in avoiding the unlimited disclosure
of his or her name and address is significant." Nat’l Ass ’n of Retirea’ Fea’. Emps. v.
Horner, 879 F.Zd 873, 875 (D.C. Cir. 1989). 'Here, the Exemption 6 withholdings of
such personal identifying information are relatively narrow, as they are limited to the
names and contact information of lower-ranking military and civilian personnel, and do
not extend to their titles, the higher-level officials or personnel with whom they
communicated, or the substantive information in the documents in which their names
appear. See DoD Decl. 1 14 ("DoD has a policy . . . to withhold personally identifying
information of those members of DoD who are at the military rank of Colonel or below
and at the rank of GS- l 5for below."). Given plaintiff’ s failure to present any
countervailing public interest in the release of the names and contact information of these
lower-level officials, the unrebutted substantial privacy interests identified by DoD easily
suffice to support its Exemption 6 withholdings.
III. CIA and DoD Released All Reasonably Segregable Material.
l turn now to the issue of segregability. If a record contains some information that
is exempt from disclosure, any reasonably segregable information must be released after
deleting the exempt portions, unless the non-exempt portions are inextricably intertwined
with exempt portions. 5 U.S.C. § 552(b); s.ee Trans-Paczfc Policing Agreement v. U.S.
12
Cusz‘oms Serv., 177 F.3d 1022, 1026-27 (D.C. Cir. 1999). A court errs ifit "simply
approve[s] the withholding of an entire document without entering a finding on
_ segregabil;ity, or the lack thereof." Powell__v. U.S. Bureau ofPrz`sons, 927 F.Zd 1239,
1242 n.4 (D.C. Cir. 1991) (quoting Church of_$cientology ofCal. v. U.S. Dep ’t ofthe
Army, 61 1 F.Zd 73 8, 744 (9th Cir. 1979)). A court, however, "may rely on government
affidavits that show with reasonable specificity why documents withheld pursuant to a
valid exemption cannot be further segregated." Juarez v. Dep ’z‘ of Justice, 518 F.?>d 54,
61 (D.C. Cir. 2008). l\/loreover, "[a]gencies are entitled to a presumption that they
complied with the obligation to disclose reasonably segregable material." Sussman v.
U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007) (citation omitted).
- Here, defendants’ declarations and the liinited and precise nature of the
withholdings sufficiently demonstrate CIA and DoD released all reasonably segregable
material. See Juarez, 518 F.3d at 6l. In Mr. Herrington’s declaration he explains that
DoD "carefully reviewed" all responsive documents and "determined that no segregation
of meaningful information in the withheld documents can be made" beyond the
redactions inade. DoD Decl. 11 25. Similarly, in ClA’s "page-by-page, line-by-line
review" of responsive docuinents, it determined that "no additional segregable, non-
exempt CIA information . . . can be released." CIA Decl. 11 17. lndeed, the limited
nature of ClA’s withholdings buttresses the conclusion that all segregable, non-exempt
information was re1eased. See z`a’. As to DoD, the sampling of documents attached as
exhibits to Mr. Herrington’s declaration"underscore the best efforts used to redact
narrowly and only where specific information qualifies for withholding under
13
Exemptions l, 5, and 6. See D0D Decl. Exs. 2, 35 4 (redacting narrowly at the paragraph,
sentence, and even phrase level); see also Boehm v. FBI, 948 F. Supp. 2d 9, 38 (D.D.C.
20l3) (relying on sample of responsive documents to conclude agency met segregabilty
obligations).
IV. N0 D\iscovery or In Camera RevieW ls Appropriate.
Plaintiff has failed to identify any basis for discovery in this lawsuit. "Dis_covery
in FOIA is rare and should be denied where an agency’s declarations are reasonably
detailed, submitted in good faith and the court is satisfied that no factual dispute
remains." Schrecker v. Dep ’l of./ustz'ce, 2l7 F. Supp. 2d 29, 35 (D.D.C. 20()2), af’a’, 349
F.3d 657 (D.C. Cir. 2003). Here, the declarations sufficiently demonstrate the adequacy
of defendants’ search and the propriety of their decision to withhold certain material
pursuant to specified exemptions Plaintiff’ s conclusory, self-serving, and unsigned
declaration submitted by its Chairman'and General Counsel is woefully inadequate to
create a genuine dispute of fact to support discovery. See Carter v. v. George Wash.
Um`v., 180 F. Supp. 2d 97, lll (D.D.C. 2()01) ("self-serving affidavits alone will not
protect the non-moving party from summary judgment"), af’cz’, 387 F.3d 872 (D.C. Cir.
2()04); Lemmons v. George Wash. Um'v. Hosp., 43l F. Supp. 2d 76, 84 n.9 (D.D.C. 2()06)
(fmding unsigned declaration to be of "questionable evidentiary value").
Plaintiff’s argument boils down to the unsupported contention that an adequate
search "obviously has not been done," which "raise[s] the presumption that bad faith
behavior is at issue, as it has been with . . . other recent scandals." FRCP Rule 56(d) Aff.
in Support of Pl.’s Opp’n 3 [Dkt. # 35-1]. This is precisely the type of"conclusory
l4
a1legation[] unsupported by factual data [that] will not create a triable issue of fact."
Carpem‘er v. Fed. Nat’l Mortg. Ass’n, 174 F.3d 231, 237 (D.C. Cir. 1999) (internal
citation and quotation marks omitted). Indeed, "[t]he sufficiency of the affidavits is not
undermined by a mere allegation of agency misrepresentation or bad faith, nor by past
agency misconduct in other unrelated cases." Hayden v. Nat’l Sec. Agency/Cent. Sec.
Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979). Absent any basis for discovery, plaintiff’s
request for it must be denied.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s Motion for Summary
Judgment. An Order consistent with this decision accompanies this Memorandum
Opinion.
'
RICHAR EON
United States District Judge
15
January l2, 2016, after re-review and reprocessing, CIA released a revised version of one
of these docuinents, numbered C06299693. Id. 1 8.
As explained in Mr. Herrington’s declaration, DoD reviewed the various parts of
plaintiffs FOIA request to identify the offices likely to have responsive materials See
DoD Decl. 11 6-9. Working with FOlA staff well-versed in the structure and
responsibilities of offices, DoD searched the office of Legislative Affairs, id. 1 7, and the
office of the Assistant Secretary of Defense for Special Operations & Low Intensity
Conflict, id. 1 8, and tasked the Enterprise IT Services Directorate and the Defense
Information Systems Agency to conduct further electronic searches of the records of
Ga_rry Reid, Principal Deputy Assistant Secretary of Defense for Special Operations &
Low Intensity Conflict, z`a’. 1 9. On March 3l, 2015, DoD released in full two documents,
totaling 2 pages, of responsive, non-exe1npt information. Ia’. 1 l0. On November l5,
20l5, DoD released an additional 98 responsive docu1nents, totaling 531 pages, with
exempt information redacted on the released pages. Id. 1 l l.
STANDARD OF REVIEW
FOIA cases are typically resolved on motions for summary judgment. See Petit-
Frere v. U.S. Atly’s (n)jj‘icefor the S. Dz`st. ofFlor., 800 F. Supp. 2d 276, 279 (D.D.C.
201 l) (citations omitted), ayj"dper curz`am, No. ll-5285, 2012 WL 4774807, at *l (D.C.
Cir. Sept. 19, 2012). A court will grant summary judgment "ifthe movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(a).,s ln the FOIA context, agencies may meet their
burden solely on the basis of affidavits or declarations, see Valencz`a-Lucena v. U.S.
3
w Coczsl Guam', 180 F.3d 321, 326 (D.C. Cir. 199=9), as long as they "describe the l
documents and the justifications for nondisclosure with reasonably specific detail,
demonstrate that the information withheld logically falls within the claimed exemption,
and are not controverted by either contrary evidence in the record [or] by evidence of
agency bad faith," Mz'lz`tary Audz`trPrQ/`ect v. Casey, 656 F.Zd 724, 738 (D.C. Cir. l98l)
(footnote omitted). "To successfully challenge an agency’s showing that it complied
with the FOIA, the plaintiff must come forward with specific facts demonstrating that
there is a genuine i~s~s~uee\->v-i't'h~respect-to~whether~the~ageney»li-as~i-iri-proper-l»y#vv-i-thhel~d . .
agency records~." ---Spcz-n-v._De-p-’Lof.lustice¢696_l3._Supp.._2d»l_l_3.,_l.l.9_(D.D.C.._Z_()_l0_) ~
(internal quotation marks omitted).
ANALYSIS
I. CIA’s and DoD’s Searches for Resp0nsive Rec0rds Were Adequate.
l begin by addressing the adequacy of CIA’s and DoD’s searches for records
responsive to plaintiff`s FOIA requests. "lt is elementary that an agency responding to a
FOIA request inust conduct a search reasonably calculated to uncover all relevant
documents, and, if challenged, must demonstrate beyond material doubt that the search
was reasonable." Truitt v. Dep ’z‘ ofState, 897 F.Zd 540, 542 (D.C. Cir.- ]9'90') (footnotes,
brackets, and internal quotation marks o1nitted). Unfortunately for plaintiff, l conclude
that CIA’s and DoD’s searches were appropriate.
Defendants have demonstrated that they -met their burden through the "relatively
detailed and non-conclusory" affidavits of agency officials See Mobley v. CIA, 806
568, 580-81 (D.C. Cir. 2015). Mary E. Wilson, the Acting information Review Officer
4
for CIA’s Litigation lnfor1nation Review Office, explained that the CIA "consulted
Agency offi.cials with knowledge of the Agency’s record-keeping practices to ascertain
all locations reasonably likely to possess responsive records," searched numerous
locations for both paper and electronic files, and found the documents ultimately
produced to plaintiff. See CIA Decl. 11 9-l3. Mark Herrington, the fAssociate_Deputy
General Counsel in DoD’s Offic'e of General Counsel responsible for overseeing FOIA
litigation, described in detail how DoD identified the offices likely to have responsive
records, the means used to search therein, and how they searched for both electronic and
paper records. See DoD Decl. 11 6-9. He also explained how DoD searched the records
of the office and individual at the center of plaintiffs FOIA requests: the Office of the
Assistant Secretary .of Defense for Special Operations & Low Intensity Conflict, and
Garry Reid, Principal Deputy Assistant Secretary of Defense for Special Operations &
Low Intensity Conflict. Id. Ms. Wilson and l\/lr. Herrington described how the searches
located hundreds of pages of responsive records, contained within over l0O documents,
ultimately produced in full or in part absent information withheld as exempt under FOIA.
See DoD Decl. 11 10-1 l; ClA Decl. 1 8.
Plaintiff wholly fails to present any evidence rebutting the agency’s showing of a
good faith search. Rather than provide any facts that create a genuine issue regarding the
adequacy of the search, plaintiff asserts without support that it is "common sense that
documents clear-ly exist" beyond those produced. Pl.’s Opp’n to Defs.’ Mot. for Summ.
J. ("Pl.’s Opp’n") 20 [Dkt. # 35]. lt is well established, however, that "the adequacy cfa
FOIA search is generally determined not by the fruits of the search, but by the
5
appropriateness of the methods used to carry out the search." Ilurralde v. Complroller of
the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). Moreover, an "agency’s failure to
turn up a particular document, or mere speculation that as yet uncovered documents
might exist, does not undermine the determination that the agency conducted an adequate
search for the requested records." Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004) (per
curiam).
Plaintiff’s only argument regarding the search methods employed-that
defendants should not have relied on "keyword searches," Pl.’s Opp’n 22_is
unsupported and unpersuasive. In another recent case involving this plaintiff, the D.C.
Circuit explained, "FOIA expressly permit[s] automated searches, see 5 U.S.C. §
» 552(a)(3)(D) (explaining that ‘search’ means to review, manually or by automated
means)[.]" Freecz'om Waz‘ch v, Nat'l Sec. Agency, 783 F.3d 1340, 1345 (D.C. Cir. 2015). `
Indeed, agencies routinely rely upon keyword searches to locate responsive electronic
documents. See, e.g., Mobley, 806 F.3d at 581; Oglesby v, Dep ’t ofArmy, 920 F.Zd 57,
68 (D.C. Cir. 1990). Moreover, the searches here encompassed far more than inputting
keywords. Far from "avoid[ing] interacting with human beings,” Pl.’s Opp’n 22,
defendants spoke with individuals familiar with the offices’ records systems, and
searched paper records as well. See CIA Decl.‘W 9-12; DoD Decl. 1111_\_6, 8. In the above-
referenced case brought by Freedom Watch, our Circuit Court held that such manual
searches, in conjunction with keyword searches, suffice to meet the agency’s burden.
Freecz’om Walch v. Nat’/ Sec. Agency, 783 F.3d at 1345. The same holds true here.
Lastly, plaintiff effectively acknowledges that the agencies may have satisfied
their FOIA obligations under controlling case law, but invites the Court to "modify such
recent precedents and return to a faithful interpreta'tion" of FOIA. Pl.’s Opp’n 20.
Unfortunately for plaintiff, this is an invitation l neither can, nor desire, to accept.
II.: CIA and DOD Pr0perly Invoked FOIA Exemptions.
Next l turn to the propriety_-of -d-e.fe.ndan»ts-’ -d-e-c-isi-on. to-wi§il§iz@é)fli€lé£?:’i£!_¢:¢,i;;m§§é;§;§§:
pursuant to F()IA Exemptions l, 3, 5, and 6. Under FOIA agencies must produce
requested information unless it falls into one of nine statutory exemptions. See U.S.C.
§ 552(b). When documents are withheld, the agency bears the burden of demonstrating
that its withholding was proper. Ia'. § 552(a)(4)(B). Agencies often use a Vaughn index
to_meet their burden, see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), but a court
may also award summary judgment on the basis of information provided in affidavits or
declarations if those submissions are sufficiently detailed and not controverted by other
evidence or bad faith, see Relz`ant Energy Power Generatz`on, Inc. v. Fed. E;/zergy
Regulatory Comm ’n, 520 F. Supp. 2d 194, 200 (D.D.C. 2007).
Here, the uncontroverted declarations sufficiently demonstrate-that the agencies
properly withheld exempt material pursuant to Exe1nptions l, 3, 5, and 6. See CIA Decl--.
111 ],4;l.6;.D.oD Decl. w 14-24. Under Exe1nption l, FOIA does not require the
production of records that are: "(A) specifically authorized under criteria established by
an Exe.cutive or.der to be kept secret in the interest of national defense or foreign policy,
7
and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C.
§ 552(b)(l). A Court must give "substantial weight" to agency affidavits detailing
classified 1naterials, King v. U.S. Dep’t ofJuszice, 830 F.2d 210, 217 (D.C. Cir. 1987),
and defer to the expertise of agencies involving national security and foreign policy, see
Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999).
An agency can withhold records pursuant to Exe1nption l "if it complies with
classification procedures established by the relevant executive order and withholds only
such material as conforms to the order’s substantive criteria for classification." Kz`ng v.
U.S. Dep ’t ofJustz`ce, 830 F.2d 210, 214 (D.C. Cir. 1987). DoD has established it has
done just that. l\/lr. Herrington explains that an Original Classification Authority
("OCA"), as authorized by Section l.l of Executive Order ("EO") 13526, has _‘\‘found
information was properly classified under either section l.4(a), which permits
classification of military plans and operations, or l.4(c), which permits classification of
information pertaining to, reflecting, or constituting" intelligence-related matters. DoD
Decl. fl 23. l\/loreover, all of the Exemption l redacted material "is classified at the
SECRET level, and so its release would . . . reasonably be expected to cause serious
damage to national security," consistent with Section l.2 of EG 13526. Id. 1 24. Thus,
DoD properly withheld this small amount of material pursuant to Exemption l.
ClA and DoD properly invoked Exemption 3, under which information may be
withheld pursuant to a statute that "requires that the matters be withheld from the public
in such a manner as to leave no discretion on the issue." 5 U.S.C. § 552(b)(3)(A)(i). The
"sole issue for decision" thereunder "is the existence of a relevant statute and the
8
inclusion of withheld material within that statute’s coverage." Goland v. C]A, 607 F.Zd
339, 350 (D.C. Cir. l978). As with Exemption l, "substantial weight [is] owed to agency
explanations in the context of national security" to qualify for Exemption 3 withholding.
Stucz’e)its Agaz'nst G|enocz`de v. Dep ’t ofState, 257 F.3d 828, 840 (D.C. Cir. 2001).
Here, the defendants properly withheld names and contact information pursuant to
three qualifying statutes: l0 U.S.C. § l30(B), l0 U.S.C. § 424, and 50 U.S.C. § 3507.
Section l30(B) authorizes withholding "personally identifying information regarding . . .
any member of the armed forces assigned to an overseas unit, a sensitive unit, or a
'routinely deployable unit." l0 U.S.C. § l30(B)(a)(l). Section 424 authorizes
withholding of sensitive information related to, inter alz`a, the Defense intelligence
Agency ("DIA") and the "number of persons employed by or assigned or detailed to
[DIA] or [their] name[s] [or] official t‘itle[s] . . . ." 10 U.S.C. § 424(a)(2). DoD has
sufficiently established how its li1nited Exemption 3 withholdings are properly the
subject of these two statutes. Mr. Herrington explains that Exe1nption 3 was applied only
` to withhold certain "names or contact information"-as is clear from the context of the
redactions-and only from those who "serve in sensitive, overseas, or routinely
deployable units" or those who "work for DIA." DoD Decl. jl l6. As for the third
qualifying statute, Section 6 of the ClA Act of 1949 as amended exempts the ClA from
"any other law[s] which require the publication or disclosure of the organization,
functions, names, official titles, salaries, or numbers of personnel employed by the
agency . . . ." 50 U.S.C. § 3507. ln her unrebutted declaration, Ms. Wilson explains the
withheld material constitutes "the names and identifying information of ClA employees"
9
- SOUI`
- process privilege invoked here by
in addition to information that potentially reveals authorship of a document "resid[ing] on
the CIA’s internal network." CIA Decl. 11 l6; see Baker v. CIA, 580 F.2d 664, 669 (D.C.
Cir. 197 8) (no "independent showing of a nexus between the withholding of personnel
data and the security of foreign intelligence activities or the protection of intelligence
ces and methods" required to properly withhold such Exemption 3 information).
These withholdings meet the Exemption 3 standard.
DoD properly invoked Exemption 5 to protect from disclosure "inter-agency or
intra-agency memorandums or letters which would not be available by law to a party . . .
in litigation with the agency." 5 U.S.C. § 552(b)(5). Exemption 5 protects records if
they would "normally [be] privileged in the civil discovery context." NLRB v. Sears,
Roebuck & Co., 421 U.S. l32, 149 (1975). This protection includes the deliberative
DoD for its Exe1nption 5 withholdings. The
deliberative process privilege protects intra- or inter-agency documents that are
"predecisional and del»i-berative’;by shielding from disclosure "documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated." Lovz`ng v. Dep ’t of Defense,
550 F.3d 32, 38 (D.C. Cir. 2008). A document is "predecisional" if ‘l‘it was generated
before the adoption of an agency policy," and "deliberative" if "it reflects the give-and-
take of the consultative process." Coastal States Gas Corp. v. Dep ’t lofEnez/gy, 617 F.Zd
854, 866 (D.C. Cir. 1980).
Here, all material withheld pursuant to Exemption 5 involves DoD’s decision-
making about upcoming Congressional testimony by Garry Reid, a Principal Deputy
lO