Waterman v. IRS (D.C. Cir.) -- affirming in part and reversing in part district court’s decision and holding that: (1) IRS properly relied on Exemption 5’s deliberative process privilege to withhold “evaluative” facts in an auditor’s memo concerning plaintiff’s suspected misconduct, but that the memo’s chronological collection of plaintiff’s statements was not exempt; (2) IRS improperly invoked Exemption 5 to withhold an auditor’s memo summarizing her telephone calls with plaintiff that, in the majority’s view, reflected no point of view; and (3) IRS properly invoked Exemption 5 to withhold an analysis of plaintiff’s disciplinary referral, including extracted facts pertinent to plaintiff’s alleged misconduct. In a partial dissent, one panelist opined that both memos were deliberative because “(1) their purpose was to assist in a discretionary decision” (whether to further investigate [plaintiff]) and (2) their authors selected facts that reflected a point of view (that plaintiff should be investigated).”
Project on Gov't Oversight v. DHS (D.D.C.) -- ruling that: (1) plaintiff, a sophisticated FOIA party, had expressly waived its right—via email exchanges with opposing counsel and in joint status reports—to contest the sufficiency of agency’s search for certain complaint-related records maintained by the Office of Civil Rights and Civil Liberties; and (2) DHS improperly relied on Exemption 5’s deliberative process privilege to withhold “unverified observations of first impression” contained in expert reports, and it failed to provide sufficient evidence to establish that experts’ analysis, opinions, or recommendations met the foreseeable harm requirement.
Summaries of all published opinions issued since April 2015 are available here.