In what circumstances does the deliberative process privilege apply to allow a public agency to withhold disclosure under the Freedom of Information Act?

This case concerns the deliberative-process privilege, which, as noted, shields from disclosure "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Sears, 421 U.S. at 150, 95 S.Ct. 1504 (quotation marks and citation omitted). Effective agency decision-making often requires candid debate of a policy option's merits and demerits, but "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances." Id. (alteration and quotation marks omitted) (quoting United States v. Nixon, 418 U.S. 683, 705, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) ); see also

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Jud. Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735, 739 (D.C. Cir. 2017). The deliberative-process privilege enables agency personnel to engage in open and frank discussions free from the chilling effect attending the prospect of disclosure. RCFP, 3 F.4th at 361. Protecting deliberative documents from release to the public thus safeguards the quality of agency decisions. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8–9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001).

To properly invoke the privilege, an agency must show that the records at issue are both pre-decisional and deliberative. U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., ––– U.S. ––––, 141 S. Ct. 777, 785–86, 209 L.Ed.2d 78 (2021). A record is pre-decisional if it was "prepared in order to assist an agency decisionmaker in arriving at his decision, rather than to support a decision already made." Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (internal quotation marks and citations omitted). And a record is deliberative if it "reflects the give-and-take of the consultative process." Jud. Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (quotation marks omitted) (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)).

Assessing whether a record is pre-decisional or deliberative necessarily requires identifying the decision (and the associated decisional process) to which the record pertains. An agency invoking the deliberative-process privilege thus must "establish what deliberative process is involved, and the role played by the documents in issue in the course of that process." Senate of the Commonwealth of Puerto Rico ex rel. Judiciary Comm. v. DOJ, 823 F.2d 574, 585–86 (D.C. Cir. 1987) (internal quotation marks and citation omitted). The agency, that is, "bears the burden of establishing the character of the decision, the deliberative process involved, and the role played by the documents in the course of that process." Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984).

To be sure, the deliberative-process privilege may apply even when the agency never reaches a final decision. That could happen, for instance, if an idea "dies on the vine" or meets a "dead-end." Sierra Club, 141 S. Ct. at 786. But to carry its burden in such a situation, the agency still must tie the withheld records to a decision-making process, even if that process did not ultimately result in a decision. Coastal States, 617 F.2d at 868.

As a general matter, records reflecting prosecutors’ views on whether the evidence in a case supports initiating a prosecution will qualify for protection under the deliberative-process privilege. That is because an analysis of the sufficiency of the evidence would typically relate to the ultimate decision of whether to bring charges. Accordingly, several decisions have held that prosecutors’ notes and internal communications about whether to file charges are exempt from disclosure under the deliberative-process privilege. See Gov't Accountability Project v. DOJ, 852 F. Supp. 2d 14, 26 (D.D.C. 2012); Kishore v. DOJ , 575 F. Supp. 2d 243, 259–60 (D.D.C. 2008); Jackson v. USAO , 293 F. Supp. 2d 34, 39–41 (D.D.C. 2003). Ordinarily, the government would have little difficulty establishing that a prosecutor's views about the sufficiency of the evidence form part of a privileged decisional process about whether to initiate or decline a prosecution.

This, however, is the rare case that falls outside of that typical understanding. As the Department concedes, it never in fact considered charging President Trump with obstruction of justice or any other crime. Instead, like Special Counsel Mueller, the Department took as a given that the Constitution would bar the prosecution of a sitting President. In light of the Department's "well-known and longstanding view that a sitting President cannot be indicted or prosecuted," the March 2019 memorandum analyzing the evidence against President

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Trump could not have pertained to any decision about prosecuting him. Dep't Br. 28. The memorandum, then, was neither pre-decisional nor deliberative as to such a decision-making process.

It is not at all clear that a purely hypothetical, academic discussion among agency personnel could qualify for protection under the deliberative-process privilege. It is true that, early in a decision-making process, an agency might host a free-flowing brainstorming session at which staff members toss around ideas without necessarily having a specific ultimate decision in mind. And those sorts of early-stage discussions would ordinarily qualify for protection under the deliberative-process privilege. Presumably, though, the deliberations in that kind of situation at least would have the possibility of leading to some later decision. If there were no such possibility—as was the case here with respect to the actual bringing of charges—it is difficult to see how the conversation could be pre-decisional and deliberative so as to implicate the privilege.

In short, while the decisional process on which the Department now relies involved a determination as to whether the Attorney General should make a public statement, none of the Department's submissions to the district court suggested that the March 2019 memorandum related to such a decision. In its briefing to us, the Department expresses regret that its submissions to the district court could have left the misimpression that an actual charging decision was under consideration, and it assures us that any misimpression it may have caused to that effect was inadvertent and not the result of any bad faith. Still, the Department at no point indicated to the district court that the memorandum gave advice on the making of a public statement. The Department thus failed to carry its burden to establish the relevant decisional process.

ICE invokes the “deliberative process privilege,” “which shields ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'” Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 357 (D.C. Cir. 2021) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). “The privilege is rooted in the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news. To encourage candor, which improves agency decisionmaking, the privilege blunts the chilling

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effect that accompanies the prospect of disclosure.” Jud. Watch, Inc. v. U.S. Dep't of Just., 20 F.4th 49, 54 (D.C. Cir. 2021) (cleaned up).

For the privilege to apply, a document must be both “predecisional and deliberative.” Machado Amadis v. U.S. Dep't of State, 971 F.3d 364, 370 (D.C. Cir. 2020). A “predecisional” document is “generated before the adoption of an agency policy.” Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (emphasis added). This is a functional inquiry: the question is “whether the agency treats the document as its final view on the matter. When it does so, the deliberative process by which the governmental decisions and policies are formulated will have concluded and the document will have real operative effect.” Jud. Watch, 20 F.4th at 54 (cleaned up).

A “deliberative” document “reflects the give-and-take of the consultive process.” Reps. Comm., 3 F.4th at 362 (cleaned up). “To demonstrate that a document is deliberative,” the agency “must explain the role [the document] played in administrative decisionmaking-the ‘who, what, where, and how' of internal governmental deliberations.” Campaign Legal Ctr. v. U.S. Dep't of Just., 34 F.4th 14, 23 (D.C. Cir. 2022) (quoting Jud. Watch, 20 F.4th at 57). That usually requires showing “the roles of the document drafter and recipients, the nature of the withheld content, and the stage within the broader deliberative process in which the withheld material operates.” Id. (cleaned up). The agency should also “explain the way in which the withheld material facilitated agency deliberation.” Id. (cleaned up).

The analysis, however, does not end there. “Under a 2016 amendment to FOIA, an agency may not withhold exempt materials unless the agency ‘reasonably foresees that disclosure would harm an interest protected by' a FOIA exemption.” Reps. Comm. for Freedom of the Press v. U.S. Customs & Border Prot., 567 F.Supp.3d 97, 109 (D.D.C. 2021) (quoting 5 U.S.C. § 552(a)(8)(A)(i)(I)).

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When invoking deliberative process privilege, the foreseeable harm requirement calls for more than “just mouthing the generic rational for the . . . privilege itself.” Reps. Comm., 3 F.4th at 370. It requires “a focused and concrete demonstration of why disclosure of the particular type of material at issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward.” Id.

"Under the deliberative process privilege, factual information generally must be disclosed, but materials embodying officials' opinions are ordinarily exempt." Petroleum Info. Corp., 976 F.2d at 1434 (citations omitted). Nevertheless, "the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction." Goodrich Corp. v. U.S. Envtl. Prot. Agency, 593 F.Supp.2d 184, 189 (D.D.C. 2009). Instead, courts in this district rely on a functional approach under which purely factual material is subject to release "unless the material so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations," In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997), or the selection of facts "reflects an exercise of discretion and judgment calls," Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (internal quotation marks and citation omitted); cf. 5 U.S.C. § 552(b) (providing that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt"). That is, courts must "focus less on the nature of the materials sought and more on the effect of the materials' release: the key question in [such] cases [is] whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Dudman Commc'ns v. Dep't of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987).

OMB has fallen well short of demonstrating that the disputed factual information is so inextricably intertwined with any deliberative portions of the calendar entries that disclosure would reveal the agency's deliberations. First, it is not at all clear how release of the disputed material might reveal any aspect of the agency's deliberative process. In the context of this case, details about where a meeting was held, who scheduled a meeting,

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and who attended a meeting reveal, at most, insignificant or readily observable details about an agency's decisionmaking process. Indeed, because Plaintiffs have not challenged the withholding of the subject matters of these meetings, it is not even apparent exactly what decisionmaking processes are at issue with respect to any particular calendar entry. Though Plaintiffs might infer the general topic of a meeting from a list of meeting participants—the most potentially revelatory information in dispute—release of this information would expose no suggestions, no recommendations, no proposals, and no other aspect of the agency communications, and it is not apparent how disclosure of this information might in any way discourage candid discussion within the agency. See Access Reports, 926 F.2d at 1195 (noting that "[t]he ‘key question’ in identifying ‘deliberative’ material is whether disclosure of the information would ‘discourage candid discussion within the agency’ " (quoting Dudman Commc'ns Corp., 815 F.2d at 1567–68)). And, with respect to the locations of meeting and the name of the "inviter" who scheduled the meetings, the Court struggles to imagine anything one could possibly glean about the agency's deliberations from this information. The Court is not persuaded by OMB's bald assertions to the contrary.

Second, and relatedly, this matter is quite different from Wolfe v. HHS, 839 F.2d 768 (D.C. Cir. 1988) (en banc), the primary case on which OMB relies. See Def.'s MSJ at 7–11; Def.'s Opp'n & Reply at 6–9. In Wolfe, FOIA requesters sought access to a Regulations Log maintained by the Secretary of Health and Human Services ("HHS") that listed regulatory actions submitted by the Food and Drug Administration ("FDA") for review and approval; the date on which HHS received the proposal from FDA; and, if applicable, the date on which HHS had transmitted any approved proposals to OMB. See Wolfe, 839 F.2d at 771. Plaintiffs argued that the log contained only factual information that was segregable from any agency deliberative process and that it did not expose the substance of regulatory actions considered by the agencies. See id. at 771–72. The Circuit, sitting en banc, disagreed with plaintiffs' contention that, in the context of the case, the fact/opinion distinction offered a useful test to divide deliberative materials from nondeliberative information. See id. at 774. The "fact of the forwarding" of certain actions from FDA to HHS and from HHS to OMB, operated as "the functional equivalent of an intra-agency or inter-agency memorandum that states, ‘We recommend that a regulation on this [named] subject matter be promulgated.’ " Id. And "[t]he fact of a failure to forward from the FDA to HHS, or from HHS to OMB [wa]s the equivalent of a memorandum from HHS to FDA that states, ‘We disapprove of your recommendation that a particular regulation on this [named] subject matter be promulgated.’ " Id. at 774–75. Thus, the Circuit concluded that, though superficially factual, the requested information "would reveal the timing of the deliberative process and it would indicate the agency in which the deliberative process is at the moment going forward." Id. at 775.

The information at issue in this case functions differently than the records in dispute in Wolfe. Unlike in Wolfe, the disputed materials in this case have scant potential to expose internal agency deliberations. Revealing, for example, that the OMB Director scheduled a "regulatory policy" meeting with certain White House advisors would offer, at the very most, only very limited insight into possible topics of discussion at the meeting. Certainly, in the context of this case, disclosure of the fact that certain officials met—or, at least,

[330 F.Supp.3d 384]

planned to meet—in a particular location does not shed light on whether the agency resolved or even considered any matter at all, let alone expose the exact substance of internal agency decisions and the timing of those decisions, as in Wolfe. The Court disagrees that Wolfe bears on the propriety of OMB's withholding in this case.

Third, other courts in this district have held that similar factual information is not protected by the deliberative process privilege. For example, in Judicial Watch, Inc. v. Dep't of Navy, 25 F.Supp.3d 131 (D.D.C. 2014), a court ordered an agency to release the names of signatories to contracts that the agency had entered with five companies. See id. at 133, 139–40. The court reasoned that the names were "indisputably factual," did not "embody[ ] officials' opinions," and did not "bear on the formulation or exercise of agency policy-oriented judgment." Id. at 140 (internal quotation marks and citations omitted). Furthermore, the agency had not shown "how the names implicate[d] any deliberative process that may have gone into the creation of [the disputed document] as a whole." Id. Similarly, in Judicial Watch, Inc. v. U.S. Dep't of Treasury, 796 F.Supp.2d 13 (D.D.C. 2011), a court in this district concluded that, though factual information from an analytical memorandum was covered by the deliberative process privilege to the extent that it might expose the agency's decisionmaking processes or the timing of internal agency actions, the agency could not withhold segregable factual information that would not expose agency deliberations. Id. at 26–29. Following the court's in camera review of the disputed documents, it found that portions of meeting minutes were segregable from deliberative material. See id. at 29. Specifically, the court concluded that "the headers at the top of each set of minutes that list the date and time of the meeting, the names of the ... Committee members present, and the names of observers" were subject to release. See id.; see also Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Homeland Sec. , 592 F.Supp.2d 111, 117–19 (D.D.C. 2009) (concluding that records of visits by individuals entering parts of the White House complex that were in the possession of the Secret Service were not protected by the presidential communications privilege because, among other reasons, "[s]hielding such general information as the identities of visitors would ‘considerably undermine the purposes of FOIA to foster openness and accountability in government’ " (quoting Judicial Watch, Inc., 365 F.3d at 1118) ).³ These same considerations apply in this case.

The Court is not persuaded by OMB's invocation of cases involving factual information that could not be released without jeopardizing the privacy of agency deliberations. See Def.'s Opp'n & Reply at 7–9. For example, OMB contends that Elec. Frontier Found. v. Nat'l Security Agency, 2016 WL 1059389 (N.D. Ca. Mar. 17, 2016) —a decision by a district court in another jurisdiction—supports the application of the deliberative process privilege to the factual material in dispute in this case. In that case, plaintiffs sought release of the names of small government components mentioned in a document that the

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court had already found to be deliberative. See id. at 3. Observing that the question of whether the names would implicate the government's deliberative process presented a "close" question, the court found—without much in the way of analysis—that the names were covered by the privilege. See id. But, given that the dearth of analysis and the fact-specific nature of the application of FOIA exemptions, this Court hardly regards that case as convincing authority supporting the application of the deliberative process privilege in this case.

Likewise, OMB cites Cofield v. City of LaGrange, Ga., 913 F.Supp. 608 (D.D.C. 1996), a case in which plaintiffs sought access to materials maintained by the Department of Justice that related to voting rights. See id. at 612–13. In that case, a court in this district concluded that maps that "reflect[ed] manipulation and analysis of the facts by [Department of Justice] personnel" were not subject to release. Id. at 616. The court also found that "documents with internal routing notations [we]re within the scope of the [deliberative process] privilege, because such notations may reasonably lead to identification of those individuals involved in the decisionmaking process, a result that could chill open and frank discussions within the agency." Id. at 617. Neither concern is at issue in this case. As explained above, the release of factual information regarding who attended meetings, who scheduled meetings, and where meetings were held is not intertwined with any deliberative process in these particular documents. And the disclosure of this information reveals, at the very most, the names of individuals who may have been consulted on unspecified policy matters and cannot be reasonably understood as exposing the identities of decisionmakers in a manner that might chill discussions within the agency.⁴

Finally, to accept OMB's contention that the factual material at issue in this case is covered by the deliberative process privilege would flout "the oft-repeated caveat that FOIA exemptions are to be narrowly construed." FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982); see also Soucie v. David, 448 F.2d 1067, 1078 (D.C. Cir. 1971) (noting that "courts must beware of ‘the inevitable temptation of a governmental litigant to give [Exemption 5] an expansive interpretation in relation to the particular records in issue" (quoting Ackerly v. Ley, 420 F.2d 1336, 1341 (D.C. Cir. 1969)). OMB argues that information such as the location at which a meeting was held might expose the agency's deliberative process, but OMB fails to articulate how this information might be used to gain an insight into the agency's decisionmaking process or how disclosure of this information might

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inhibit agency discussions. In sum, the Court rejects OMB's bald contention that it may withhold factual information featured in the OMB Director's calendar entries. OMB must release the disputed material, including the names of schedulers, the names of meeting attendees, and the locations of meetings from the calendar entries that it has labelled as deliberative.⁵

When the deliberative process privilege is at issue, the need for an agency to describe all of the information it withheld is "particularly acute because ‘the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process.’ " Animal Legal Def. Fund v. Dep't of Air Force, 44 F.Supp.2d 295, 299 (D.D.C. 1999) (quoting Coastal States, 617 F.2d at 867). If the agency does not provide " ‘the minimal information necessary to make a determination’ concerning applicability of the deliberative process privilege" then the court should deny the agency summary judgment. See Elec. Frontier Found. v. U.S. Dep't of Justice, 826 F.Supp.2d 157, 173 (D.D.C. 2011) (quoting Coastal States, 617 F.2d at 861 ).

Therefore, to justify its application of the deliberative process privilege, an agency must address the following areas: "(1) the nature of the specific deliberative process involved, (2) the function and significance of the document in that process, and (3) the nature of the decisionmaking authority vested in the document's author and recipient." Nat'l Sec. Counselors v. CIA, 960 F.Supp.2d 101, 189 (D.D.C. 2013) (citing Senate of P.R. v. U.S. Dep't of Justice, 823 F.2d 574, 585–86 (D.C. Cir. 1987); Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257–58 (D.C. Cir. 1982)). In addition, other courts in this district have held, and the D.C. Circuit has suggested, because of the underlying purpose of the exemption, that "the agency must make the additional showing that disclosure would cause injury to the decisionmaking process." Nat'l Sec. Archive v. CIA, 859 F.Supp.2d 65, 70 (D.D.C. 2012), aff'd, 752 F.3d 460 (D.C. Cir. 2014); see also Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977) ("An agency cannot meet its statutory burden of justification by conclusory allegations of possible harm. It must show by specific and detailed proof that disclosure would defeat, rather than further, the purposes of the FOIA.");

[346 F.Supp.3d 75]

Judicial Watch, Inc. v. U.S. Postal Serv., 297 F.Supp.2d 252, 259 (D.D.C. 2004) ("The deliberative process privilege exists to prevent injury to agency decisionmaking.... [s]uch harm can not be merely presumed ..." (internal citation omitted)). With these requirements in mind, the Court evaluates each agency's withholdings pursuant to the deliberative process privilege in turn.

DOJ argues that the requested materials fall under the deliberative process privilege, which protects materials that are "predecisional" and "deliberative." Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). This case turns on the first requirement—that the withheld materials be predecisional. Documents are predecisional if they were "prepared in order to assist an agency decisionmaker in arriving at his decision, rather than to support a decision already made." Petroleum Info. Corp., 976 F.2d at 1434 (citations and internal quotation marks omitted). Here, the contested documents consist of 11 drafts of the letter from Gary to Dr. Ron Jarmin as well as redactions from 20 pages of related emails. (ECF No. 12-2 at ¶ 13.)

CLC argues that none of the documents are predecisional because they were created after Commerce decided to add the citizenship question to the Census and after DOJ decided to issue the letter requesting that question. (Pl. MSJ at 21–22.) Defendant does not dispute this timeline, but argues that the documents are predecisional because they were created before the letter was finalized. (Def. Reply at 6–7.) The parties thus agree on the sequence of events, but disagree about what constitutes the relevant agency decision: the decision to write the letter, or the decision about the letter's final contents.

The inquiry can be circular. Indeed, every draft postdates the decision to write it, and simultaneously predates the decision of what to include in it. Such is the case here: the drafting process postdated Attorney General Session's decision to issue the letter, but undeniably predated the decision about the final contents of the letter. In this regard, Plaintiff and Defendant are both right: the disputed materials are predecisional, but they are also postdecisional.

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The ultimate question is what constitutes the relevant decision for Exemption 5.

As Wright & Miller have observed, "[d]efining ‘decision’ for purposes of the privilege is no easy task." 26A Charles Alan Wright et al., Fed. Practice & Procedure § 5680 (1st ed. 1992). Though there is no well-established test for identifying the relevant decision, cases in this Circuit do provide some guidance. First, they suggest that the relevant decision in any given case is one that involves discretion about what an agency position or agency policy should be.² The D.C. Circuit has held, for example, that documents did not fall under Exemption 5 because they "were not suggestions or recommendations as to what agency policy should be." Coastal States Gas Corp. v. Dep't of Energy , 617 F.2d 854, 868 (D.C. Cir. 1980) (emphasis added). The Court later elaborated on this principle:

To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment ... [W]hen material could not reasonably be said to reveal an agency's or official's mode of formulating or exercising policy-implicating judgment, the deliberative process privilege is inapplicable.

Petroleum Info. Corp. , 976 F.2d at 1435 (D.C. Cir. 1992).

Consistent with this language, this Circuit has held that drafts showing the exercise of "agency policy-oriented judgment" are in fact predecisional. See Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 39 (D.C. Cir. 2002). In Dudman Commc'ns Corp. v. Dep't of Air Force, 815 F.2d 1565, 1565 (D.C. Cir. 1987), the D.C. Circuit withheld a preliminary draft of a historical work published by the Air Force about operations in South Vietnam between 1961 and 1964. The drafting process involved decisions about the agency's historical conclusions and representations to the public. Id. at 1566. In Radiation Sterilizers, Inc. v. U.S. Dep't of Energy, No. 90-880, 1991 U.S. Dist. LEXIS 4669 (D.D.C. Apr. 9, 1991), the Court withheld documents from a drafting process that determined what data and conclusions should be included in an interim report to Congress about a chemical leak. Likewise, in Brown v. Dept. of State, 317 F. Supp. 3d 370, 370 (D.D.C. 2018), the court withheld documents produced in preparation for court filings and for a letter to Congress.

The facts of this case are significantly different. The letter at issue did not involve discretion about an agency position or about the primary reasons for the agency position. The agency's position and the reasons for the letter had already been decided. Thus, the drafting did not demonstrate "the process by which policy is formulated," nor could it "reasonably be said to reveal an agency's or official's mode of formulating or exercising policy-implicating judgment." Petroleum Info. Corp., 976 F.2d at 1434 (D.C. Cir. 1992).

Moreover, Gary and Gore were not drafting the document so that a supervisor or colleague could decide a particular issue. In Coastal States, the D.C. Circuit held that "a document from a subordinate to a superior official is more likely to be predecisional." 617 F.2d at 868. This is

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because such documents generally aid in the decisionmaking process about an agency's position. Thus, in Access Reports v. Dep't of Justice, the D.C. Circuit upheld withholding a document that a low-level employee created for supervisors who had asked for research on a particular issue. 926 F.2d 1192, 1196-97 (D.C. Cir. 1991). Such documents are quintessentially predecisional—they are created to help the agency make a decision. See Krikorian v. Dept. of State, 984 F.2d 461, 466 (D.C. Cir. 1993) (withholding a document from subordinates to supervisors that proposed two options for how to respond to public inquiries about a recent agency decision regarding a genocide); United Am. Fin., Inc. v. Potter, 531 F. Supp. 2d 29, 44 (D.D.C. 2008) (withholding investigative notes that were provided to an office to assist it in writing a report to employees about identity theft against the agency); Blank Rome LLP v. Dep't of the Air Force, No. 15-cv-1200 (RCL), 2016 WL 5108016, at *4-5, *10-11, 2016 U.S. Dist. LEXIS 128209, at *14, *35 (D.D.C. Sept. 20, 2016) (withholding draft documents that assisted the Air Force in coming to a decision regarding a settlement proposal).

Here, the contested documents do not fit that mold. They were not used to help the agency make a decision, but rather were used to communicate the decision.³ If the materials in question were drafts of documents that Gore and Gary prepared for Attorney General Sessions before he decided to request the citizenship question, they would be squarely predecisional. But that was not their purpose. While Gore did email the draft to supervisors before it was sent to the Census Bureau, it is telling that in the email he wrote that he was sending them a "near-final" draft. (Def. Exh. A at 66.) In other words, the draft was not provided to supervisors to help them make a decision. The decision had already been made, and the supervisors were reviewing Gore's implementation of it. (See id.)

³ Decisions about how to message agency policy to the public can be predecisional. See Hooker v. HHS, 887 F. Supp. 2d. 40, 40 (D.D.C. 2012) (withholding drafts of a publication about vaccine safety); Hunton & Williams LLP v. U.S. EPA, 346 F.Supp.3d 61 (D.D.C. 2018) (withholding drafts of letters to non-profits and emails discussing communications strategy); Sierra Club v. U.S. Dep't of Interior, 384 F. Supp. 2d 1, 20 (D.D.C. 2004) (withholding documents related to the agency's response to a congressional inquiry.) In fact, a court recently held that the contested documents in this case constituted "messaging." See New York v. U.S. Dep't of Commerce, Civ. A. No. 18-2921, 2018 WL 4853891, at *2, 2018 U.S. Dist. LEXIS 1772468, at *20(S.D.N.Y. Oct. 5, 2018). These cases are inapplicable here because DOJ concedes that the withheld materials are not messaging documents. (Def. Reply at 15 n.3.)