The New York Times Company v. Department of Education

Background

The New York Times Company and Erica Green submitted a Freedom of Information Act (FOIA) request to the Department of Education for emails sent or received by specified Department employees between February 14, 2018, and May 14, 2018. The request concerned terms related to school shootings, school safety, the Federal Commission on School Safety, and related subjects. The plaintiffs later narrowed the request and excluded mass mailings and assembled news clips.

After the lawsuit was filed, the Department made seven productions totaling 4,885 pages. The remaining dispute concerned records that the Department had redacted or withheld under FOIA Exemption 5, which protects certain internal agency communications, and Exemption 7, which protects certain law-enforcement records. The plaintiffs challenged material in approximately 25 records. The Department and the plaintiffs each moved for summary judgment, meaning each asked the court to rule because there was no material factual dispute requiring a trial.

Exemption 5: internal agency deliberations

The Department relied on the deliberative-process privilege, which protects predecisional and deliberative records reflecting an agency’s policy-development process. The court explained that purely factual material ordinarily must be disclosed, but factual information may be protected when the agency’s selection and organization of the information would reveal its policy judgments. The Department also had to show that disclosure would foreseeably harm its deliberative process and that reasonably separable nonexempt material had been released.

The court upheld the Department’s withholding of research memoranda and charts concerning federal and state legislation, gun-control measures, school-safety drills, firearms at schools, and related topics. The court found that the Department had shown these materials were selectively assembled and organized to help develop school-safety recommendations, and therefore were both deliberative and prepared before the Commission’s final report.

The court also upheld the withholding of a memorandum selecting statements by public officials, an analysis of a media article and its possible effect on Department policy, briefing materials, talking points, and briefing books prepared for Secretary Elisabeth “Betsy” DeVos’s upcoming public events. The court found that these materials reflected judgments about what information and messages to present concerning school safety and were prepared before final recommendations were made.

The court upheld the withholding of meeting notes describing substantive policy discussions, recommendations, proposed next steps, and documents reviewed by participants. For two additional documents, however, the court held that information about the locations of Federal Commission on School Safety meetings was factual and did not reflect policy judgment. The plaintiffs’ motion was granted only as to those location-related redactions, and the Department was ordered to produce that material within 30 days. The plaintiffs’ motion was otherwise denied as to those documents.

The court could not determine from the Department’s submissions whether three other documents contained descriptions of existing policy that had to be disclosed or protected analysis concerning the development of new policy. Those documents were Bates numbers 002876-002881, 002981, and 003232-003233. The Department’s motion was denied without prejudice as to those documents. The Department was directed to review them again, make additional productions as appropriate, and update its document index within 30 days.

Exemption 7: law-enforcement records

The Department withheld in full an FBI report concerning identified threats to schools and school shootings, including references to ongoing investigations, and a Department of Homeland Security memorandum summarizing school public-safety incidents and active investigations. The court held that the Department had shown the records concerned pending or prospective investigations and that disclosure could alert investigative targets to the existence or scope of an investigation and interfere with it.

The court therefore upheld the Department’s withholding of the FBI and Department of Homeland Security records in their entirety under Exemption 7(A). Because that ruling was sufficient, the court did not decide whether Exemption 7(E), which concerns certain investigative techniques and procedures, also justified withholding.

Disposition

The court granted the Department’s motion for summary judgment in part and denied it in part. It granted the Department’s motion as to all documents in the plaintiffs’ Appendix A except Bates numbers 002876-002881, 002981, and 003232-003233, as to which the motion was denied without prejudice. It also upheld the withholding of the records covered by Exemption 7. The plaintiffs’ motion was granted only as to redactions identifying the locations of the Commission’s meetings and was otherwise denied. The parties were directed to identify any remaining disagreements and address the status of the case by joint letter.