"[A] blanket declaration that all facts are so intertwined to prevent disclosure under the FOIA does not constitute a sufficient explanation of non-segregability." Ctr. for Biological Diversity v. EPA , 279 F. Supp. 3d 121, 152 (D.D.C. 2017) (quoting Wilderness Soc'y v. U.S. Dep't of Interior , 344 F. Supp. 2d 1, 19 (D.D.C. 2004) ). "Rather, for each entry the defendant is required to ‘specify in detail which portions of the document are disclosable and which are allegedly exempt.’ " Wilderness Soc'y , 344 F. Supp. 2d at 19. (quoting Animal Legal Def. Fund, Inc. v. U.S. Dep't of Air Force , 44 F. Supp. 2d 295, 302 (D.D.C. 1999) (emphasis in original)).
This "Circuit has made clear that simply designating a document as a ‘draft’ does not automatically make it privileged under the deliberative process privilege[,] ... [and] factual information which does not bear on the policy formulation is not subject to the deliberative process privilege." Wilderness Soc. v. U.S. Dep't of Interior, 344 F.Supp.2d 1, 14 (D.D.C. 2004) (Walton, J.) (internal citation omitted). Thus, the "[d]efendant[ ] must identify the function and significance ... in the agency's decision making process of all redacted and withheld documents to qualify them as exempt under the deliberative process privilege."
NLRB v.Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966) “The purpose of the deliberative process privilege is to ensure open communication between subordinates and superiors, prevent premature disclosure of policies before final adoption, and to avoid public confusion if grounds for policies that were not part of the final adopted agency policy happened to be exposed to the public.”Wilderness Soc'y v. U.S. Dep't of Interior, 344 F.Supp.2d 1, 10 (D.D.C.2004). Notably, “[t]he deliberative process privilege protects agency documents that are both predecisional and deliberative.”
An agency's Vaughn Index "must be sufficiently detailed to allow a court to determine whether the claimed exemptions apply to the withheld documents." Wilderness Soc'y v. United States DOI, 344 F.Supp.2d 1, 9 (D.D.C. 2004). Here, DoD has failed to carry its burden with regard to its withholdings under the deliberative process privilege and attorney-client privilege pursuant to Exemption 5.
"Examples of the type of documents that might qualify as predecisional are ‘recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.’ " Wilderness Soc. v. U.S. Dep't of Interior , 344 F.Supp.2d 1, 11 (D.D.C. 2004) (quoting Coastal States Gas Corp. v. Dep't of Energy , 617 F.2d 854, 866 (D.C. Cir. 1980) ). As to the second prong, "[a] document is deliberative if ‘the materials ... bear on the formulation or exercise of agency policy-oriented judgment. ’ " Wilderness Soc. , 344 F.Supp.2d at 11 (quoting Petroleum Info. Corp. v. Dep't of the Interior , 976 F.2d 1429, 1435 (D.C. Cir. 1992) ).
FOIA expressly requires agencies to extract “[a]ny reasonably segregable portion of a record” and provide it to the requesting party “after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). “[I]t has long been the rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions.” Wilderness Soc'y v. U.S. Dep't of Interior, 344 F.Supp.2d 1, 18 (D.D.C.2004) (emphasis in original), quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977). Agencies and courts must “differentiate among the contents of a document rather than to treat it as an indivisible record for FOIA purposes.”
Further, in making a determination of whether a document is properly withheld under Exemption 5, "courts frequently examine whether `the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest communication within the agency.'" Wilderness Soc. v. U.S. Dep't of Interior, 344 F. Supp. 2d 1, 15 (D.D.C. 2004) (quoting Coastal States, 617 F. 2d at 866). "However, in cases where there is no identifying information that would link an individual to a document, this potential is unlikely."
"`Accordingly, to approve exemption of a document as predecisional, a court must be able to pinpoint an agency decision or policy to which the document contributed.'" Id. (quoting Senate of Puerto Rico, 823 F.2d at 585); see also Wilderness Society v. United States Dep't of the Interior, 344 F. Supp. 2d 1, 12 (D.D.C. 2004) (ordering disclosure because agency failed to identify a specific, final agency decision). As with all privilege assertions, the agency bears the burden of demonstrating the final policy or decision that was reached at the end of the particular deliberative process that the document plays into.
"To meet its burden in this regard, the agency must 'provide[] a detailed justification and not just conclusory statements.'" Charles v. Office of the Armed Forces Med. Exam'r, 2013 U.S. Dist. LEXIS 143076, at *19 (D.D.C. Oct. 2, 2013); see also Wilderness Soc'y v. United States DOI, 344 F. Supp. 2d 1, 19 (D.D.C. 2004) ("[A] blanket declaration that all facts are so intertwined to prevent disclosure under the FOIA does not constitute a sufficient explanation of non-segregability.") DISCUSSION
And while “[a]gencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material,” id. at 1117, “a blanket declaration that all facts are so intertwined to prevent disclosure under the FOIA does not constitute a sufficient explanation of non-segregability .... rather, for each entry the defendant is required to specify in detail which portions of the document are disclosable and which are allegedly exempt.” Wilderness Soc'y v. Dep't of Interior, 344 F.Supp.2d 1, 19 (D.D.C.2004) (emphasis in original) (internal quotation marks and citations omitted). As noted above, Magistrate Judge Facciola's Report and Recommendation found that Defendants had failed to carry their burden of showing the documents withheld in full contained no reasonably segregable information.