In camera review doesn’t back deliberate process claim

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Although the Council on Environmental Quality, or CEQ, claimed the production of dozens of unredacted documents would chill speech, stifle “frank and open discussions” and confuse the public, an in camera review did not support these assertions.

Background

Southern Environmental Law Center, or SELC, filed this action against the CEQ Nov. 30, 2018, seeking to compel the disclosure of records previously requested under the Freedom of Information Act, or FOIA.

On May 5, 2020, CEQ produced documents in response to SELC’s 2018 request. However, of the 8,528 pages of documents CEQ produced, 5,014 were fully redacted, and CEQ invoked the deliberative process privilege 5,775 separate times. In an Oct. 30, 2020, order, the court directed CEQ to produce numerous documents to the court for in camera review. The court has reviewed each submitted document and is prepared to rule on the propriety of CEQ’s redactions.

Analysis

Upon review of each of the submitted records, the court concludes that CEQ has not adequately demonstrated it will suffer a reasonably foreseeable harm from the documents’ unredacted production. To justify its redactions, CEQ cites a “foreseeable harm of chilling speech and stifling frank and open discussions” and a general “risk of public confusion.”

However, the court’s in camera review of the documents showed scant risk either potential harm arising. Simply put, having studied each unredacted document, the court cannot conclude that “disclosure would harm an interest protected by an exemption.” The foreseeable harm requirement is subject to a “heightened standard.”

Bearing this in mind, and having had the benefit of reviewing the unredacted documents in camera, the court finds the deliberative process exemption inapplicable to the records submitted for in camera review. The court therefore orders CEQ to produce fully unredacted versions to SELC, excluding personal contact information.

Southern Environmental Law Center v. Council on Environmental Quality, Case No. 3:18-cv-00113, Dec. 14, 2020. WDVA at Charlottesville (Conrad). VLW 020-3-618. 10 pp.