DC Circuit Rules vs. FOIA for Draft Census Letter

A federal court ruled on Tuesday that drafts of a letter that was ultimately sent by the US Department of Justice asking for a question about citizenship in the 2020 census are not publicly accessible records under law. on freedom of information.

In a 24-page reviewcircuit judge Patricia Millette was joined by circuit judges Neomi Rao and Gregory Katsas on a three-judge panel of the United States Circuit Court for the District of Columbia in rejecting efforts by the Campaign Legal Center to obtain these drafts. Millet is a barack obama named person; Rao and Kansas were nominated by donald trump.

The original letter, sent by DOJ’s General Counsel of the Division of Justice Management Arthur Garywas used by the then Secretary of Commerce Wilbur Ross to argue for the inclusion of the controversial issue. Shortly after the DOJ made its request, however, the CLC filed a FOIA request for documents that would explain how and why the DOJ came to ask the citizenship question. Over time, the DOJ withheld more than 100 pages of responsive documents under two exemptions to the nation’s first transparency law.

Many FOIA exemptions are contained in the underlying law. The documents relevant to CLC’s request were the documents excluded under Exemption 5, which generally protects “pre-sentence” and “deliberative” documents.

The CLC prosecuted the documents withheld – and certain redactions contained in the documents produced. In 2020, a DC district court granted the nonprofit group access to a number of documents.

“[T[he court finds that the relevant decision for purposes of Exemption 5 is the one made by [then attorney general Jeff Sessions] ask the question of citizenship, not the decision on the final content of the letter,” the U.S. District Judge said. Tanya Chutkanan Obama appointee, wrote in a 27-page review. “Emails sent and drafts written after this ruling are therefore not pre-sentence and cannot be withheld under Exemption 5.”

On appeal, the lower court was largely reversed.

“The parties do not dispute, and could not on this file either, that the documents in question were created after [Sessions’] decision to ask the Census Bureau to include a citizenship question in the census,” Millett wrote. “So they weren’t pre-decisional about that political judgment.”

The court decided, after further analysis, that the policy judgment decision does not end the investigation or the time frame in which the agency is allowed to claim that it is still making its decisions.

From the opinion at length:

The political judgments involved in crafting Gary’s letter went beyond the single, fundamental decision to ask a citizenship question. As the jurisprudence of this Court has recognized, appeals to substantive judgment made in the process of writing and editing an official agency document that first communicates a policy decision can themselves embody determinations distinct policies, particularly where the content of such communication itself shapes and refines underlying political judgment or will have direct consequences for ongoing agency programs and policies.

“In other words, even after an agency head sets the policy direction for the agency at the macro level, the subsequent work needed to define, refine, debate, and flesh out the boundaries and justifications for this position may, after proper demonstration, also qualify as pre-sentence,” continues Millett.

The opinion cites the plaintiffs’ own admission that “the internal deliberations involved in crafting and defining the precise content and scope of the agency’s arguments, as well as the most effective way to make the position of the agency in a brief, all involve the type of substantive policy judgments labeled as pre-sentences” in the context of the United States Solicitor General’s appearance before the United States Supreme Court.

Tuesday’s ruling was not a total loss for the group, however, as the opinion returns to the lower court to decide whether “several redacted emails were pre-sentence and deliberative.”

Law&Crime contacted CLC to comment on this story, but no response was immediately received at the time of publication.

[image via BRENDAN SMIALOWSKI/AFP/Getty Images]

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