100Reporters LLC v. U.S. Dep't of Justice (316 F. Supp. 3d 124, 2018)

United States Court of Appeals for the District of Columbia 2018-06-13

Citations

Full opinion text

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

This matter arises from a Foreign Corrupt Practices Act ("FCPA") investigation of Siemens Aktiengesellschaft ("Siemens") conducted by the United States Department of Justice ("DOJ") and Securities and Exchange Commission ("SEC"). As a result of the investigation, in 2008 Siemens pleaded guilty to violating the FCPA's internal controls and books and records provisions. The plea agreement imposed a large fine on Siemens and three subsidiaries, and it required Siemens to hire an independent compliance monitor to ensure that it implemented an effective corporate governance system and complied with all applicable anti-corruption laws and regulations.

Siemens hired Dr. Theodore Waigel (the "Monitor") to serve as its compliance monitor. Pursuant to his mandate under the plea agreement, the Monitor conducted a multi-year review of Siemens' compliance programs. Over four years he provided more than 150 recommendations to Siemens for ways to improve its compliance programs, and he submitted several written reports to DOJ, including work plans at the start of each year, summary reports at the end of each year, and status reports and other correspondence on an ongoing basis. Each year, he also certified that Siemens was in compliance with the plea agreement's terms.

In 2013, Plaintiff 100Reporters LLC, a non-profit dedicated to investigative journalism, submitted a Freedom of Information Act ("FOIA") request to the DOJ seeking records related to the monitorship. DOJ denied the request and an administrative appeal. In 2014, 100Reporters brought this FOIA action before the Court.

DOJ has produced redacted documents falling within the scope of 100Reporters' request, while withholding others in full under certain FOIA exemptions. 100Reporters objects to those withholdings. In 2016, DOJ and 100Reporters filed cross-motions for summary judgment, and this Court granted DOJ's motion in part and denied it in part, and it denied 100Reporters' motion. The Court's ruling ratified DOJ's withholdings under FOIA Exemption 4 and the attorney work product privilege incorporated into Exemption 5, and it directed DOJ to provide additional factual support for the other exemptions on which it relied, including a representative sample of documents for in camera review. Now before the Court are DOJ's renewed motion for summary judgment and 100Reporters' opposition. See generally Mem. P. & A. Supp. U.S. Dep't Justice's Renewed Mot. Summ. J. ("DOJ Mem."), ECF No. 83-2; Pl.'s Opp'n ("100Reporters Mem."), ECF No. 86.

For the reasons explained below, the Court finds that DOJ's Exemption 4 withholdings are overbroad, and that while DOJ has justified the withholding of certain information under Exemptions 5, 6, and 7(C), DOJ's withholdings under those Exemptions are also overbroad. The Court will therefore grant in part DOJ's motions for summary judgment with respect to the Exemptions, but will deny DOJ's motion for summary judgment with respect to its obligation to segregate and disclose non-exempt material. Finally, the Court will grant in part and deny in part 100Reporters' cross-motion for summary judgment.

II. BACKGROUND

In July 2013, 100Reporters submitted a FOIA request to DOJ for records related to Aktienengesellschaft, et al. , 1:08-cr-367-RJL (D.D.C.), the criminal prosecution of Siemens. See Def.'s Statement of Material Facts ("DOJ Statement") ¶ 1, ECF No. 83-1. In February 2014, 100Reporters narrowed its request to the following records:

• "Corporate Compliance Statements" that Siemens filed with DOJ under Siemens' plea agreement;

• Documents relating to the Monitor's evaluation of the effectiveness of Siemens' anticorruption compliance program;

• Documents relating to steps taken by the Monitor to confirm compliance by Siemens;

• Information, records, and facilities requested by the Monitor that fell within his mandate;

• The Monitor's work plans, reviews, and reports; and

• Disclosures made by Siemens to the Monitor concerning corrupt payments and related books, records, and internal controls violations.

DOJ Statement 4; Decl. of Suzanna Moberly ("Moberly Decl.") ¶ 9, ECF No. 59-3.

Months later, in July 2014, 100Reporters brought this suit seeking to compel the production of documents that are responsive to its request. See generally Compl., ECF No. 1. DOJ's Answer raised one affirmative defense-that the requested documents were exempt from disclosure under FOIA-and it relied on FOIA Exemption 4, Exemption 5, Exemption 6, Exemption 7(A), Exemption 7(C), and Exemption 7(D) in support of that defense. See DOJ Answer at 6, ECF No. 11.

In 2015, during the pendency of the litigation, DOJ produced two sets of responsive materials to 100Reporters totaling two videos and approximately 500 pages of documents, many of which were redacted. See Moberly Decl. ¶ 19; see also Status Report & Proposed Briefing Schedule at 2, ECF No. 49 ("Federal Defendant provided Plaintiff with some of the documents previously withheld entirely, largely redacted on December 4, 2015."). DOJ continued to withhold in full six video presentations and 4,293 pages of documents. See Moberly Decl. ¶ 19. These materials are encompassed in: (1) four annual Reports prepared by the Monitor setting forth the Monitor's assessment of Siemens' compliance program and his recommendations for improvement of the same, and presentations and correspondence submitted about or in conjunction with the Monitor's reports and reviews; (2) four annual Work Plans prepared by the Monitor detailing the manner in which he intended to perform his reviews (some of which were attached as exhibits to the Monitor's annual reports), and associated correspondence, documents, and presentations; (3) Siemens training materials, internal presentations, and compliance policies; and (4) additional correspondence between the Monitor, DOJ, and SEC. See DOJ Statement ¶ 27; Decl. of Joel Kirsch ("Kirsch Decl.") ¶¶ 16, 22, 25, 27, ECF No. 58-2; Declaration of F. Joseph Warin ("Warin Decl.") ¶ 25(a)-(e), ECF No 57-2.

In March and April 2016, the parties filed cross-motions for summary judgment regarding relevant information that DOJ did not disclose. In their motions, the parties argued over whether DOJ was obligated to disclose four categories of information: (1) documents withheld pursuant to Exemption 4 as confidential commercial information; (2) documents withheld pursuant to Exemption 5's attorney work product privilege; (3) documents withheld pursuant to Exemption 5's deliberative process privilege; and (4) documents redacted pursuant to Exemptions 6 and 7(C) as records implicating the privacy interests of government employees, monitorship team members, Siemens employees, and third-party witnesses. See 100Reporters LLC v. DOJ , 248 F.Supp.3d 115, 133 (D.D.C. 2017). On March 31, 2017, this Court granted in part and denied in part DOJ's motion for summary judgment and denied 100Reporters' cross-motion. See id. at 167.

The Court granted summary judgment in favor of DOJ with regard to information withheld under Exemption 4 and information withheld under Exemption 5's attorney work product privilege. Id. at 145, 158. It held, however, that DOJ had failed to justify its withholdings under Exemption 5's deliberative process privilege, Exemption 6, and Exemption 7(C), and it denied DOJ's motion with respect to those Exemptions. Id. at 154, 165. It also held that DOJ's Amended Vaughn index and declarations were inadequate in certain respects and did not permit the Court to assess whether documents were properly withheld under the Exemption 5 deliberative process privilege, nor did they permit the Court to assess whether DOJ had disclosed all reasonably segregable, nonexempt material. Id. at 154, 166-67. In its discretion, the Court directed DOJ to provide supplemental submissions in support of its Exemption 5, deliberative process withholdings showing "(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 decision-making authority vested in the document's author and recipient." Id. at 154 (quoting Nat'l Sec. Counselors v. CIA , 960 F.Supp.2d 101, 189 (D.D.C. 2013) ). It also directed DOJ to provide "one work plan and one annual report prepared by the Monitor, including all attachments to those two documents" for in camera review. Id. at 166.

DOJ has presented two new declarations and an "Amended Chronology of Events Supporting the Deliberative Process Privilege" ("Am. Chronology"), and it provided the Court with the Monitor's Year Three Work Plan, Year Three Report, and accompanying exhibits, all of which have been reviewed by the Court in camera. See Decl. of Mark F. Mendelsohn ("Mendelsohn Decl."), ECF No. 83-3; Decl. of Charles E. Duross ("Duross Decl."), ECF No. 83-4; Am. Chronology, ECF No. 91-1; DOJ Correspondence Regarding Ex Parte In Camera Filing , ECF No. 83-5. Now before the Court are the parties' renewed cross-motions for summary judgment.

III. LEGAL STANDARD

FOIA "sets forth a policy of broad disclosure of Government documents in order 'to ensure an informed citizenry, vital to the functioning of a democratic society.' " FBI v. Abramson , 456 U.S. 615, 621, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) (quoting NLRB v. Robbins Tire & Rubber Co. , 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) ). "[D]isclosure, not secrecy, is the dominant objective of [FOIA]." U.S. Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). FOIA mandates release of properly requested federal agency records, unless the materials fall squarely within one of nine statutory exemptions. Milner v. U.S. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) ; Students Against Genocide v. U.S. Dep't of State , 257 F.3d 828, 833 (D.C. Cir. 2001) (citing 5 U.S.C. § 552(a)(3)(A), (b) ).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defs. of Wildlife v. U.S. Border Patrol , 623 F.Supp.2d 83, 87 (D.D.C. 2009) (citing Bigwood v. U.S. Agency for Int'l Dev. , 484 F.Supp.2d 68, 73 (D.D.C. 2007) ). The agency is entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates "that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information." Competitive Enter. Instit. v. EPA , 232 F.Supp.3d 172, 181 (D.D.C. 2017). "This burden does not shift even when the requester files a cross-motion for summary judgment because 'the Government ultimately has the onus of proving that the documents are exempt from disclosure,' while the 'burden upon the requester is merely to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.' " Hardy v. ATF , 243 F.Supp.3d 155, 162 (D.D.C. 2017) (brackets omitted) (quoting Pub. Citizen Health Research Grp. v. FDA , 185 F.3d 898, 904-05 (D.C. Cir. 1999) ).

To carry its burden, the agency must provide "a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply." Elec. Privacy Info. Ctr. v. DEA , 192 F.Supp.3d 92, 103 (D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S. Dep't of Air Force , 566 F.2d 242, 251 (D.C. Cir. 1977) ). In conducting its review, a court may also rely on its own in camera examination of disputed documents to determine whether they were properly withheld under the claimed statutory exemptions. See 5 U.S.C. § 552(a) ; see also, e.g., Citizens for Responsibility & Ethics in Washington v. Nat'l Archives & Records Admin. , 715 F.Supp.2d 134, 140-42 (D.D.C. 2010) (relying on the Court's in camera review to resolve whether documents had been properly withheld). This Court reviews the agency's explanations de novo , and will endorse an agency's decision to withhold information if the justification for invoking a FOIA exemption "appears 'logical' or plausible.' " Pinson v. DOJ , 245 F.Supp.3d 225, 239 (D.D.C. 2017) (quoting Wolf v. CIA , 473 F.3d 370, 374-75 (D.C. Cir. 2007) ). Nonetheless, "exemptions from disclosure must be narrowly construed ... and conclusory and generalized allegations of exemptions are unacceptable." Morley v. CIA , 508 F.3d 1108, 1114-15 (D.C. Cir. 2007) (citation and internal quotation marks omitted).

IV. ANALYSIS

DOJ continues to withhold certain documents-some in part and some entirely-pursuant to FOIA Exemptions 4, 5, 6, and 7(C). 100Reporters argues that (1) DOJ has failed to show that it properly withheld information under Exemptions 5, 6, and 7(C); and (2) the documents at issue contain segregable non-exempt information that should be disclosed. For reasons explained below, the Court holds that DOJ withheld information under Exemption 4 that is not within the scope of that Exemption. The Court also holds that DOJ has justified the withholding of certain information pursuant to the deliberative process privilege contained in Exemption 5, and certain personal information pursuant to Exemptions 6 and 7(C), but that it similarly applied those Exemptions in an overbroad manner. Accordingly, the Court holds that DOJ failed to fulfill its obligation to segregate and disclose non-exempt information.

A. Exemption 4

The first issue before the Court is whether DOJ's Exemption 4 withholdings are appropriately tailored. Having completed its in camera review, the Court holds that certain withholdings are overbroad because they cover material that is not commercial in nature. Exemption 4 states that "trade secrets and commercial or financial information obtained from a person" that are "privileged or confidential" may be withheld from disclosure. 5 U.S.C. § 552(b)(4). An agency may rely on Exemption 4 if it can establish that withheld materials are "(1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential." Pub. Citizen Health Research Grp. v. FDA , 704 F.2d 1280, 1290 (D.C. Cir. 1983).

DOJ states that it has withheld information under Exemption 4 in the following categories of documents:

• The Monitor's work plans and related documents;

• The Monitor's annual reports and exhibits;

• The Monitor's presentations to DOJ and SEC summarizing various aspects of his work;

• Emails and correspondence between the Monitor, Mr. Warin, DOJ attorneys, and SEC attorneys concerning various aspects of the monitorship;

• Correspondence between the Siemens Board, DOJ and SEC attorneys concerning various aspects of the monitorship; and

• Siemens compliance policies, descriptions of its compliance programs, and compliance program training materials.

Moberly Decl. ¶ 20. This Court previously granted summary judgment for DOJ regarding its Exemption 4 withholdings in the following categories of documents: (1) the Monitor's Reports and associated documents; (2) the Monitor's Work Plans and associated documents; and (3) Siemens' trainings, compliance policies, and associated documents. 100Reporters , 248 F.Supp.3d at 144-45. DOJ asserts that the categories of documents covered by the prior Memorandum Opinion "encompass all of the eight enumerated categories listed above." DOJ Mem. at 17 n.5. The Court credits DOJ's assertion, particularly because 100Reporters has not challenged it. See generally 100Reporters Mem.

While the Court accepted DOJ's Exemption 4 rationale, it noted that "the Court's analysis does not apply to the entirety of the documents themselves." 100Reporters , 248 F.Supp.3d at 145 n.13. It consequently ordered DOJ to produce a representative Work Plan, Report, and set of Report exhibits for in camera review. Id. Having inspected those materials, the Court evaluates whether DOJ's Exemption 4 withholdings are sufficiently narrow for each category of documents, beginning with the documents reviewed in camera .

1. Documents Reviewed In Camera

The Court has now reviewed the Monitor's Year Three Work Plan, Year Three Report, and the Report's associated exhibits in camera , and it has determined that DOJ's redactions to these materials were overbroad because they cover some information that is not commercial.

Withheld "information is commercial under [Exemption 4] if, in and of itself, it serves a commercial function or is of a commercial nature." Nat'l Ass'n of Home Builders v. Norton , 309 F.3d 26, 38 (D.C. Cir. 2002) (internal quotation marks and citations omitted). Therefore, Exemption 4 covers "records that actually reveal basic commercial operations, such as sales statistics, profits and losses, and inventories, or relate to the income-producing aspects of a business." See Pub. Citizen Health Research Grp. , 704 F.2d at 1290. And in the D.C. Circuit, Exemption 4 "reaches more broadly and applies (among other situations) when the provider of the information has a commercial interest in the information submitted to the agency." Baker & Hostetler LLP v. U.S. Dep't of Commerce , 473 F.3d 312, 319-20 (D.C. Cir. 2006) (holding that letters describing market conditions for domestic lumber companies "plainly contain commercial information within the meaning of Exemption 4"); see also Pub. Citizen Health Research Grp. , 704 F.2d at 1290 (holding that "documentation of the health and safety experience of [a company's] products" was commercial because such documentation was "instrumental in gaining marketing approval for their products"). Certain material in the Work Plan, Report, and exhibits is not commercial because it does not fall within the Circuit's "commercial interest" standard.

a. Year Three Work Plan

DOJ and Siemens characterize the Work Plans as containing reams of information relating to Siemens' operations. For instance, Mr. Kirsch stated that the Plans detail "Siemens' operations, contracts, projects, and bids that the Monitor intended to review." See Kirsch Decl. ¶ 22. He also stated that they reflect "Siemens' business operations, structure, and compliance controls." Id. ¶ 24. Similarly, the Amended Vaughn Index states that the Monitor's Year One Work Plan describes "the number of Siemens employees in each country, new orders, new government orders, joint ventures and business partnerships, and Siemens' business development strategy across different sectors of the economy." DOJ_0000001, Am. Vaughn Index at 18.

The Court's in camera review, however, has revealed that the Year Three Work Plan consists mostly of general descriptions of the Monitor's past and future activities with very few details about Siemens' business operations. The Plan is broken into eight sections, which the Court has analyzed as follows:

• Section I is the Work Plan's Introduction. It has been produced un-redacted.

• Sections II and III, entitled "The Year One Review" and "The Year Two Review," contain summary statistics and general descriptions of the Monitor's activities in prior years, noting, for instance, that the Monitor "collected, reviewed, and analyzed approximately 10,000 Company documents totaling approximately 140,000 pages," and that the Monitor "observed more than twenty regularly scheduled compliance-related meetings." They contain no information about Siemens' business operations, competitive landscape, or compliance programs.

• Section IV, entitled "The Compliance Monitor's Mandate and Year Three Review," describes the obligations of Siemens and the Monitor under the plea agreement, and it generally describes the Monitor's "risk-based approach," again without providing any information about Siemens' operations or compliance programs.

• Section V, entitled "Substantive Structure of the Year Three Review," describes the seventeen "thematic focus areas" that guided the Monitor's evaluation. One paragraph in this Section, on page 12 of the Plan, lists Siemens' purchasing volume, number of supplier relationships, and number of supplier accounts. Aside from this business information, however, this Section lays out each thematic focus area without reference to Siemens' business operations or its compliance policies.

• Section VI, entitled "Methodology of the Year Three Review," describes the Monitor's tools for conducting his evaluation, including document inspection, on-site observation, informational meetings, analyses, studies, and testing. Again, while this Section describes the type of employees the Monitor planned to interview, it does not include specific employee names, nor does it list specific Siemens sectors and business units that were targeted for interviews.

• Section VII, entitled "Countries of Interest," describes the specific countries targeted by the Monitor for analysis. It includes, for each country, "the number of Siemens employees in each country, new orders, new government orders, joint ventures and business partnerships, and Siemens' business development strategy across different sectors of the economy." DOJ_0000001, Am. Vaughn Index at 18.

• Finally Section VIII, the Monitor's "Proposed Schedule," lays out specific deadlines for the Monitor's evaluation. Again, it contains no commercial information.

Other than the "Countries of Interest" Section, the Work Plan does not reveal "basic commercial operations" that "relate[ ] to the income-producing aspects of [Siemens'] business." See Pub. Citizen Health Research Grp. , 704 F.2d at 1290. And unlike the types of information held to be commercial in this Circuit's more expansive reading of Exemption 4, for instance letters describing market conditions, or "documentation of the health and safety experience of [a company's products]," the descriptions of the Monitor's activities do not elaborate on Siemens' business or describe its competitive landscape. See Baker & Hostetler LLP , 473 F.3d at 319 ; Pub. Citizen Health Research Grp. , 704 F.2d at 1290. The Monitor's process and methodology are not "instrumental" to Siemens' commercial interests, and therefore do not fall within the scope of Exemption 4. Id. DOJ therefore may only redact Section VII, "Countries of Interest," under Exemption 4, and it must remove the remaining Exemption 4 redactions.

b. Year Three Report

To a lesser degree, the Monitor's Year Three Report also contains subsections wholly unrelated to Siemens' commercial operations. Chapter Four of the Report, entitled "The Monitor's Year Three Review and Recommendations,"

provides the Monitor's analysis, opinions, and recommendations for each thematic focus area identified in the Work Plan. Unlike in the Work Plan, much of this chapter in the Report was properly withheld under Exemption 4 because it contains detailed analyses of Siemens' business operations, and how those operations addressed each focus area. However, the chapter also includes subsections covering "General Principles and Good Practices," which contain analyses of industry best practices and guidance obtained from FCPA decisions involving different companies. Those subsections do not discuss Siemens' business operations. Nor do they relate to the Monitor's actions with respect to Siemens. They are summaries of third party behaviors, useful as a reference source. They do not "reveal [Siemens'] basic commercial operations," and DOJ has failed to demonstrate that Siemens otherwise has a commercial interest in the information related to other companies. Id. They may not be redacted under Exemption 4.

DOJ properly redacted the remaining portions of the Report. Chapter One is an introduction describing specific Siemens compliance initiatives and business decisions. Chapter Two contains details of the Monitor's Year Three activities, with references to specific Siemens business operations. Chapter Three, entitled "Financial Controls in Times of Crisis," describes Siemens' response to geopolitical crises in various countries, including specific steps taken by specific business units. These Chapters "actually reveal basic commercial operations, such as sales statistics, profits and losses, and inventories, or relate to the income-producing aspects of a business." See Pub. Citizen Health Research Grp. , 704 F.2d at 1290. And Chapters Five and Six, entitled "Evaluation of Implementation of the Monitor's Year One [and Two] Recommendations," describe changes to Siemens' compliance policies. They document "the way [Siemens] implement[ed] [its] compliance programs," which in this Circuit is "sufficiently 'instrumental' to the [company's] operations to qualify as 'commercial.' " Pub. Citizen Health Research Grp. v. HHS , 66 F.Supp.3d 196, 208 (D.D.C. 2014). To the extent the Report contains other material that is arguably non-exempt, it is "inextricably intertwined with exempt portions" such that it need not be un-redacted. Mead Data Cent., Inc. , 566 F.2d at 260.

c. Year Three Report Exhibits

The Year Three Report exhibits also contain non-commercial information that DOJ has improperly redacted under Exemption 4. Exhibit A is the Year Three Work Plan, which should receive the same treatment as the standalone Work Plan discussed above. Exhibit B contains the Monitor's Work Plans for his evaluations of Siemens' headquarters and specific countries. They include general descriptions of the Monitor's past and future activities that are very similar to descriptions in the primary Work Plan described above, and their redactions should be rolled back in accordance with DOJ's changes to the Work Plan redactions. To the extent that they contain Siemens' business operations information similar to the information contained in the "Countries of Interest" Section of the Work Plan, that information may remain redacted. Exhibits C, D, and E concern Siemens compliance policies and programs, and are therefore commercial information. See Public Citizen Health Research Grp. v. HHS , 66 F.Supp.3d at 208. They may remain redacted under Exemption 4.

2. Documents Not Reviewed In Camera

The Court's prior Memorandum Opinion established that DOJ was justified in redacting the following categories of documents under Exemption 4:

• The Monitor's presentations to DOJ and SEC summarizing various aspects of his work;

• Emails and correspondence between the Monitor, Mr. Warin, DOJ attorneys, and SEC attorneys concerning various aspects of the monitorship;

• Correspondence between the Siemens Board, DOJ and SEC attorneys concerning various aspects of the monitorship;

• Siemens compliance policies and descriptions of various aspects of its compliance programs; and

• Siemens compliance program training materials

See 100Reporters , 248 F.Supp.3d at 145 ; Moberly Decl. ¶ 20. As discussed in Section D, below, the Court holds that DOJ must reprocess these documents and ensure that their redactions are consistent with the Court's guidance regarding the documents reviewed in camera .

It is also unclear whether DOJ's Exemption 4 withholdings and redactions are coextensive with its Exemption 5 withholdings and redactions for documents not reviewed in camera . To the extent that more material has been withheld under Exemption 5 than Exemption 4, DOJ's Exemption 5 arguments regarding each of these categories are discussed in the following section.

B. Exemption 5, Deliberative Process Privilege

DOJ contends that it has properly withheld documents and redacted information pursuant to FOIA Exemption 5's deliberative process privilege. The Court agrees in part. Exemption 5 permits an agency to protect "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). It incorporates the deliberative process privilege, which "protects documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated." Loving v. U.S. Dep't of Def. , 550 F.3d 32, 38 (D.C. Cir. 2008) (internal quotation marks omitted). "The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance 'the quality of agency decisions,' by protecting open and frank discussion among those who make them within the Government." U.S. Dep't of Interior v. Klamath Water Users Protective Ass'n , 532 U.S. 1, 8-9, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (quoting NLRB v. Sears, Roebuck & Co. , 421 U.S. 132, 151, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ). It also "helps to prevent premature disclosure of proposed policies and protects against public confusion through the disclosure of documents suggesting reasons for policy decisions that were ultimately not taken." Judicial Watch, Inc. v. U.S. Postal Serv. , 297 F.Supp.2d 252, 258-59 (D.D.C. 2004).

"To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment." Petroleum Info. Corp. v. U.S. Dep't of Interior , 976 F.2d 1429, 1435 (D.C. Cir. 1992). A record only qualifies for this privilege if it is both "predecisional" and "deliberative." Access Reports v. DOJ , 926 F.2d 1192, 1194 (D.C. Cir. 1991). "A document is predecisional if it is 'generated before the adoption of an agency policy.' " McKinley v. FDIC , 744 F.Supp.2d 128, 138 (D.D.C. 2010) (quoting Coastal States Gas Corp. v. U.S. Dep't of Energy , 617 F.2d 854, 866 (D.C. Cir. 1980) ). A document is "deliberative" if it reflects "the give-and-take of the consultative process." Coastal States , 617 F.2d at 866.

As a threshold matter, to withhold information under the privilege an "agency must establish 'what deliberative process is involved, and the role played by the documents in issue in the course of that process.' " Senate of P.R. ex rel. Judiciary Comm. v. DOJ , 823 F.2d 574, 585-86 (D.C. Cir. 1987) (quoting Coastal States , 617 F.2d at 868 ). "In addition to explaining the 'function and significance of the document(s) in the agency's decision-making process,' the agency must describe 'the nature of the decision-making authority vested in the office or person issuing the disputed document(s), and the positions in the chain of command of the parties to the documents.' " Elec. Frontier Found. v. DOJ , 826 F.Supp.2d 157, 168 (D.D.C. 2011) (quoting Arthur Andersen & Co. v. IRS , 679 F.2d 254, 258 (D.C. Cir. 1982) ). The Court may also rely on its own in camera inspection of documents to discern whether the deliberative process privilege applies. See Phillippi v. CIA , 546 F.2d 1009, 1012-13 (D.C. Cir. 1976) ("It is clear that the FOIA contemplates that the courts will resolve fundamental issues in contested cases on the basis of in camera examinations of the relevant documents.").

DOJ states that it has withheld information in the following categories of documents pursuant to the deliberative process privilege:

• The Monitor's work plans and related materials;

• The Monitor's yearly reports, exhibits, and related materials;

• Emails and correspondence between the Monitor, Mr. Warin, DOJ attorneys, and SEC attorneys concerning various aspects of the monitorship;

• Correspondence between the Siemens Board, DOJ, and SEC attorneys concerning various aspects of the monitorship;

• Siemens compliance policies, descriptions of its compliance programs, and compliance program training materials; and

• Draft court filings involving the Siemens prosecution.

Moberly Decl. ¶ 24. DOJ has reasserted that these withholdings are justified by the deliberative process privilege, and it has presented additional factual material supporting its invocation of that privilege, including a sampling of documents for in camera review. See DOJ Mem. at 4-6. 100Reporters argues that "[d]espite the opportunity to bolster its case, DOJ has still failed to satisfy its burden necessary to withhold information under the deliberative process privilege." 100Reporters Mem. at 4.

The Court first considers whether DOJ has sufficiently identified the deliberative processes at issue and the role played by the documents in the course of those processes. It then determines whether the withheld information is predecisional and deliberative. For the reasons set forth below, the Court holds that DOJ's reliance on the deliberative process privilege is justified only in part, because certain withheld information is not predecisional or deliberative.

1. The Deliberative Process at Issue

In its prior Memorandum Opinion, this Court held that the Monitor's materials were intra-agency documents subject to Exemption 5, but that DOJ had not "sufficiently identified the deliberative process or processes at issue" to allow the Court to fully evaluate DOJ's deliberative process invocation. 100Reporters , 248 F.Supp.3d at 149-50. It noted that DOJ's characterization of the deliberative process-whether Siemens had satisfied its obligations under the plea agreement-would "create a four-year umbrella effectively shielding all agency action from review." Id. at 153. The process identified was "too nebulous to allow the Court to conduct the necessary analysis for each withheld record." 100Reporters , 248 F.Supp.3d at 153.

Without reaching the questions of whether the withheld materials are predecisional or deliberative, the Court permitted DOJ to supplement the record to show "(1) the nature of the specific deliberative process involved (including whether that process resulted in a decision independent of, although related to, the ultimate compliance decision), (2) the function and significance of the document in that process, and (3) the nature of the decision-making authority vested in the document's author and recipient." Id. at 154 (quoting Nat'l Sec. Counselors 960 F.Supp.2d at 189 ). It also directed DOJ to provide the Court with one Work Plan and one annual Report prepared by the Monitor, including the Report's exhibits, so that the Court could review DOJ's privilege invocations in camera. 100Reporters , 248 F.Supp.3d at 166. DOJ has refined its characterization of the deliberative processes at issue, it has supplemented the record with additional declarations and a chronology of events relevant to its deliberative process argument, and it submitted the Monitor's Year Three Work Plan, Year Three Report, and the Report's exhibits for the Court's in camera review.

The parties dispute whether DOJ's supplemented record has addressed the Court's concerns raised in the prior Memorandum Opinion. DOJ argues that it "has now satisfied each of [the Court's] three factors through the Duross and Mendelsohn Declarations." DOJ Mem. at 6. 100Reporters contends that "[w]hile it has used more words to describe the deliberative processes it has invoked, DOJ's showing adds little that would allow the Court to find that each of the three criteria it identified has been satisfied." 100Reporters Mem. at 6. The Court is not persuaded by 100Reporters' contention. For the reasons set forth below, the Court holds that DOJ has sufficiently described the nature of the specific deliberative processes involved, the nature of the decision-making authority vested in the documents' authors and recipients, and the function and significance of the documents to the processes.

a. The Nature of the Specific Deliberative Processes Involved

DOJ's supplemented record is sufficient to identify the specific deliberative processes underlying its Exemption 5 withholdings. For a document to be evaluated under Exemption 5 "a court must be able 'to pinpoint an agency decision or policy to which the document contributed.' " Senate of P.R. , 823 F.2d at 585 (quoting Paisley v. CIA , 712 F.2d 686, 698 (D.C. Cir. 1983) ). The agency therefore has the burden to demonstrate that each withheld document was "generated as part of a definable decision-making process." Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys. , 762 F.Supp.2d 123, 135-36 (D.D.C. 2011) ; see also Coastal States , 617 F.2d at 868. A "broad and opaque description of the deliberative process involved does not provide the Court with enough detail about whether these documents are deliberative and predecisional." Trea Senior Citizens League v. U.S. Dep't of State , 923 F.Supp.2d 55, 68 (D.D.C. 2013).

DOJ asserts that the documents at issue supported two deliberative processes during the monitorship, each of which involved continuous sub-decisions, and it has supplemented the record with detailed declarations and a chronology describing these processes. DOJ Mem. at 6. 100Reporters argues that DOJ's showing "does little to describe 'the nature of the specific deliberative process involved' beyond adding more words to the overbroad descriptions this Court rejected." 100Reporters Mem. at 7. The Court is satisfied with DOJ's supplemented factual record.

First, DOJ argues that it evaluated on a continuous basis, punctuated by yearly sub-decisions, Siemens' ongoing efforts to comply with its obligations under the plea agreement. Duross Decl. ¶ 7; Mendelsohn Decl. ¶ 9. In making this determination, DOJ analyzed (1) whether Siemens committed any further crimes; (2) whether Siemens continued to assist in DOJ's ongoing investigations of Siemens officers and employees; (3) whether Siemens cooperated with the Monitor by making its records, facilities, and personnel available to the Monitor; and (4) whether Siemens' compliance program and internal controls met the minimum requirements set forth in the plea agreement. See Mendelsohn Decl. ¶ 9; Duross Decl. ¶ 7-8.

Second, DOJ argues that it evaluated on a continuous basis, again punctuated by yearly sub-decisions, whether the Monitor was "fulfilling his mandate to ensure that Siemens carried out its responsibilities under the plea agreement." Decl. of Joey Lipton ("Lipton Decl.") ¶ 5, ECF No. 59-7; Duross Decl. ¶ 9, Mendelsohn Decl. ¶ 10. More specifically, DOJ assessed (1) whether the Monitor's work plans would enable the Monitor, DOJ, and SEC to evaluate the quality and effectiveness of Siemens' compliance with anti-corruption laws in the coming years; and (2) how successfully the Monitor had discharged his mandate over the course of the previous year. Mendelsohn Decl. ¶ 10. In making this determination, DOJ analyzed, among other factors, (1) whether the Monitor's work plans were appropriately detailed to provide Siemens notice of the Monitor's movements within the company; (2) whether the Monitor's work plans and reports focused on Siemens' past improper conduct; (3) the Monitor's use of available resources and the evolution of his approach year-by-year. Duross Decl. ¶ 10.

The DOJ's supplemented materials show that each deliberative process involved sub-decisions after each year of the monitorship. Specifically, DOJ decided (1) whether Siemens breached its obligations under the resolution; (2) whether the monitorship should continue; (3) whether the monitorship should be extended; or (4) whether the monitorship should be terminated because Siemens complied with its obligations. Helou Decl. ¶ 12. Mr. Mendelsohn and Mr. Duross stated that these sub-decisions arose from meetings between the Monitor, DOJ, and SEC to discuss the Monitor's Work Plans and Reports, status reports supplied by the Monitor, exchanges of drafts and written feedback, and email discussions. See e.g. Mendelsohn Decl. ¶ 26; Duross Decl. ¶ 33; Helou Decl. ¶ 11. DOJ made the decisions "with significant input from the monitor and significant reliance on the information [provided by the Monitor]". Helou Decl. ¶ 12.

The Mendelsohn and Duross Declarations also identify approximately when sub-decisions were made. For instance, Mr. Duross stated that after receiving the Monitor's Year Two Report on October 13, 2010, reviewing presentation materials from a December 9, 2010 meeting between DOJ, SEC and the monitorship team, and deliberating upon additional materials and conversations with the Monitor, he "concluded that Siemens was making significant progress towards complying with its plea agreement." Duross Decl. ¶¶ 20-24. Similarly, Mr. Mendelsohn stated that after "reviewing the Year One Work Plan, consulting with Mr. Warin, SEC staff, and others, taking part in the April 1, 2009 monitorship meeting, and reviewing the other information and records available to me, I concluded that the Year One Work Plan was reasonable in fulfilling that part of the plea agreement, that the Monitor's Year Two Review should proceed, and that the Monitor was faithfully discharging his mandate." Mendelsohn Decl. ¶ 18.

This evidence is sufficient to define the deliberative processes involved in DOJ's oversight of the monitorship. As DOJ noted in its reply brief, courts in this District have upheld deliberative process assertions on the basis of less detailed showings. For instance, the court in Wisdom v. U.S. Trustee Program allowed an agency to withhold, under Exemption 5, documents pertaining to "the performance review process" for a bankruptcy trustee. 266 F.Supp.3d 93, 105 (D.D.C. 2017). Similarly, the court in Maydak v. DOJ allowed an agency to withhold documents generated as part of the agency's identified "continuing process ... [in making] decisions regarding [plaintiff's] placement, security level and classification." 362 F.Supp.2d 316, 326 (D.D.C. 2005) ; see also Judicial Watch, Inc. v. DOJ , 306 F.Supp.2d 58, 71 (D.D.C. 2004) (holding that the agency's identified process of "discussion and analysis concerning priorities and the way to structure research, on evaluating impact and implications of Enron for purposes of developing policy," was sufficient to invoke the deliberative process privilege). Here, DOJ has more precisely described the "specific deliberative process[es] to which the withheld [documents] contributed." Elec. Frontier Found. , 826 F.Supp.2d at 168.

100Reporters, on the other hand, relies on Exemption 5 cases in which agencies described their deliberative processes in much less detail, more akin to DOJ's first showing in this case. Nat'l Sec. Counselors involved, rather ironically, a FOIA request for documents related to an agency's treatment of FOIA requests, and the court found insufficient the agency's description of the deliberative process at issue as "the process by which the [agency] comes to a final determination in response to FOIA requests." 960 F.Supp.2d at 189-90. The court stated that the agency was required to elaborate on the "specific deliberative process to which the withheld [document] contributed," and its general description was "particularly problematic in the FOIA processing context because, in responding to a FOIA request, an agency often must make several different types of decisions, e.g., withholding decisions, fee-waiver decisions, expedited processing decisions, and others." Id. at 190. In its first summary judgment motion in this case, DOJ similarly failed to "point to subsidiary decisions that fall underneath the nebulous umbrella process" it identified, but it has now supplemented the record to detail the two processes at issue, the standards and criteria guiding those decisions, and the timing and content of the sub-decisions associated with those processes. 100Reporters , 248 F.Supp.3d at 153. The other cases put forward by 100Reporters on this issue involved similarly nebulous agency process descriptions. See Judicial Watch , 306 F.Supp.2d at 70 (holding insufficient a reference to "various ongoing policy issues"). In contrast to these conclusory descriptions, DOJ's detailed showing is sufficient to describe the nature of the deliberative processes involved.

b. The Nature of the Decision-Making Authority Vested in the Withheld Documents' Authors and Recipients

DOJ's supplemented record is also sufficient to identify the "nature of the decision-making authority vested in the withheld documents' authors and recipients." Nat'l Sec. Counselors , 960 F.Supp.2d at 189. "The identity of the parties to the [document at issue] is important; a document from a subordinate to a superior official is more likely to be predecisional, while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made." Coastal States , 617 F.2d at 868 ; see also Renegotiation Bd. v. Grumman Aircraft Eng'g Corp. , 421 U.S. 168, 184-85, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975) ; Elec. Frontier Found. v. DOJ , 739 F.3d 1, 9 (D.C. Cir. 2014) (holding that an opinion from DOJ's Office of Legal Counsel was predecisional because the author was "not authorized to make decisions about the FBI's investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency's policy").

DOJ has demonstrated that the monitorship team advised DOJ, but did not have ultimate decision-making authority. In general, "[a] monitor's primary responsibility is to assess and monitor the company's compliance with the terms of the settlement agreement." Helou Decl. ¶ 8. Siemens' Statement of Offense established that the Monitor's Reports would "set[ ] forth the Monitor's assessment and mak[e] recommendations reasonably designed to improve the effectiveness of Siemens' program for ensuring compliance with the anti-corruption laws." Statement of Offense, United States v. Siemens Aktiengesellschaft , No. 08-367, Attach. 2 ¶ 4 (D.D.C. Dec. 15, 2008), ECF No. 15 (emphasis added). Mr. Warin acted in a similar advisory capacity, as he "was retained by Siemens as Independent U.S. Counsel to the Monitor to provide counsel regarding compliance with the FCPA and to assist the Monitor in the performance of his duties and responsibilities as set forth in the [DOJ and SEC] agreements." Warin Decl ¶ 8; Helou Decl. ¶ 4. He stated that the materials "authored and submitted by the Monitor and the monitorship team, as well as our communications with the DOJ and SEC, were... part of a consultative process by which the Monitor and the monitorship team reported and provided input to the government agencies... on which the DOJ and the SEC based their determinations." Warin Decl. ¶ 12.

DOJ has also demonstrated that the documents' recipients had decision-making authority. The Amended Deliberative Process Chronology identifies documents' recipients and the specific dates on which they were transmitted. See e.g. Am. Chronology at 7-8 ("Joseph Warin sends a letter to Chuck Duross, Joey Lipton, Kara Brockmeyer, Tracy Price, and Robert Dodge advising that the monitorship will be executed as outlined in the Year Four Work Plan."). Mr. Mendelsohn and Mr. Duross, recipients of the documents at issue, both stated that they were the primary DOJ decision-makers tasked with evaluating Siemens' compliance with the plea agreement, and that they were heavily involved in that evaluation. Mendelsohn Decl. ¶¶ 5-6; Duross Decl. ¶ 4. Mr. Lipton and Ms. Weinstein, also frequent recipients of the documents, were the DOJ trial attorneys charged with day-to-day oversight of the monitorship. Lipton Decl. ¶ 3; Mendelsohn Decl. ¶ 5. Ms. Price, another frequent recipient, was an Assistant Director in the SEC's FCPA Unit, responsible for SEC's supervision of the monitorship. Price Decl. ¶ 1.

100Reporters unconvincingly argues that DOJ has not made a proper showing because it only describes the decision-making authority of some of the documents' recipients. 100Reporters Mem. at 14-16. The Court notes that the DOJ's Amended Deliberative Process Chronology names nearly every recipient of the Work Plans, Reports, and related documents. Furthermore, DOJ need only provide the Court "enough information to determine whether the deliberative process privilege applies." Pub. Employees for Envtl. Responsibility v. EPA , 213 F.Supp.3d 1, 15 (D.D.C. 2016). 100Reports cites to no case holding that DOJ must go beyond this standard, which it has met by describing the decision-making authority of the documents' most senior recipients.

c. The Function and Significance of the Withheld Information in DOJ's Deliberative Processes

The Court also holds that DOJ's supplemented record is sufficient to identify the function and significance of the documents at issue. To allow for proper review of an agency's deliberative process claim, the agency must explain the withheld documents' function and significance to the specific deliberative processes identified. See Arthur Andersen , 679 F.2d at 259 ; Elec. Frontier Found. , 826 F.Supp.2d at 167-68. This context is necessary for the Court to evaluate whether material is predecisional, because "if documents are not a part of a clear 'process' leading to a final decision on the issue, ... they are less likely to be properly characterized as predecisional." Coastal States , 617 F.2d at 868. Further, the function and significance of a document to the agency's decision-making process is an important factor in determining whether a document is bound up in the decision-making process, and thus potentially privileged, or whether it reflects a summary of a decision already-made, and thus not privileged. See Taxation With Representation Fund v. IRS , 646 F.2d 666, 678-79 (D.C. Cir. 1981) (requiring the disclosure of documents indexed, compiled, and consulted as sources of agency law by IRS employees). "The need to describe each withheld document when Exemption 5 is at issue 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, Inc. v. U.S. Dep't of Air Force , 44 F.Supp.2d 295, 299 (D.D.C. 1999) (quoting Coastal States , 617 F.2d at 867 ).

DOJ argues that its supplemented materials show that the withheld documents "either played a crucial function in DOJ's decision-making process or directly reflect its operation." DOJ Mem. at 14. 100Reporters contends that DOJ's descriptions are "conclusory" and fail "to discuss the specific role that the documents played in the deliberative process described by the government." 100Reporters Mem. at 12. DOJ's argument carries the day.

Mr. Mendelsohn described in detail how the Monitor's Work Plans, meetings, and communications with DOJ and SEC served as the basis of DOJ's continuing evaluation of the Monitor's performance. For instance, Mr. Mendelsohn stated that he and Ms. Weinstein met with the monitorship team on April 1, 2009 to discuss the Monitor's progress:

Mr. Warin made a presentation summarizing the main parts of the Work Plan, and there was a robust discussion about the Work Plan and how the Monitorship was progressing ... Additionally, we discussed the importance of the Monitor's independence and the various tools, including external and internal resources at his disposable to carry out his mandate.

Mendelsohn Decl. ¶ 15. Following the meeting, DOJ and SEC provided feedback to the monitorship team, sought additional information, and received an updated Work Plan. Mendelsohn Decl. ¶¶ 16-18. Finally, based on this back-and-forth, Mr. Mendelsohn concluded that "the Year One Work Plan was reasonable in fulfilling that part of the plea agreement, that the Monitor's Year Two Review should proceed, and that the Monitor was faithfully discharging his mandate." Mendelsohn Decl. ¶ 18. Mr. Duross describes a similar process for the Year Two Work Plan, Duross Decl. ¶¶ 14-18, Year Three Work Plan, Duross Decl. ¶¶ 26-30, and Year Four Work Plan, Duross Decl. ¶¶ 34-38.

Mr. Duross described a similar process for how DOJ utilized the Monitor's Reports and related materials to evaluate Siemens' compliance with the plea agreement. For instance, he stated that the Monitor issued his Year Two Report on October 13, 2010, after which he reviewed the report, exhibits, and the Monitor's certification. Duross Decl. ¶ 20; see also Am. Chronology at 4. Mr. Lipton then met with the monitorship team, SEC, and Siemens' financial control procedures, finance audit group, and compliance group in Munich, Germany on December 9, 2010 to discuss the Report's findings and recommendations. Duross Decl. ¶ 22, Am. Chronology at 4. Finally,

[a]fter deliberating, among other things, upon all the information and records I had received to date, including the Monitor's work plans for Years One and Two, the Monitor's Reports for Years One and Two, the associated materials, the Monitor's certification concerning the effectiveness of Siemens' compliance program, the presentation materials from the December 9, 2010, meeting, and my conversations with Mr. Lipton, Mr. Warin, and SEC staff, I concluded that Siemens was making significant progress towards complying with its plea agreement and that the Monitor was carrying out his Mandate effectively.

Duross Decl. ¶ 24.

For documents aside from the Monitor's Work Plans, Reports, and associated materials, DOJ's Vaughn Index, supplemented by the Amended Deliberative Process Chronology and DOJ's declarations, describe the documents' content and when and under what circumstances they were considered by DOJ. For instance, the Vaughn Index describes an April 13, 2009 email from a DOJ attorney to the monitorship team as "concerning DOJ feedback on the Monitor's draft work plan." See DOJ_0005222, Am. Vaughn Index at 4. Similarly, it describes a February 8, 2011 letter from the Monitor to DOJ and SEC attorneys as "setting forth the Monitor's judgment concerning the sufficiency of the work plan relative to his mandate." DOJ_0005277, Am. Vaughn Index at 93.

These showings are sufficient for the Court to evaluate the documents' functions. Courts in this District have established that agency declarations properly detail documents' functions and roles when they describe the documents, specify that they were involved in a specific agency decision, and state that they were considered by the relevant agency decision-makers. See Taylor Energy Co. LLC v. U.S. Dep't of Interior Bureau of Ocean Energy Mgmt. , 271 F.Supp.3d 73, 95-97 (D.D.C. 2017) (holding that an agency properly supported its deliberative process withholdings with a declaration describing documents sent to agency decision-makers as containing "tentative views" on whether the agency should take specific actions); Citizens for Responsibility & Ethics in Washington v. DOL , 478 F.Supp.2d 77, 82 (D.D.C. 2007) (noting that the agency's declarant was "accorded a presumption of good faith" regarding a document's role) (internal citation omitted). In accordance with that principle, Mr. Duross and Mr. Mendelshon characterized the Monitor's Work Plans, Reports, and related materials as containing opinions regarding Siemens' compliance with the plea agreement and proposals for how the Monitor's mandate should be carried out, and they stated that they relied on those opinions and proposals when making decisions.

Again, 100Reporters relies on cases in which agencies submitted far more nebulous descriptions of the function and significance of documents than the DOJ's showing here. Hunton & Williams LLP v. EPA involved boilerplate, sparse Vaughn index assertions that, for instance, withheld documents reflected "analysis, recommendations, and opinions that were considered as part of the Agency's decision-making process prior to its actions," and the agencies involved did not submit additional factual materials providing context for how documents functioned within the deliberative processes identified. 248 F.Supp.3d 220, 242-45 (D.D.C. 2017). The agency involved in Animal Legal Def. Fund offered "not a single description of any of the withheld documents." 44 F.Supp.2d at 299. And the agencies in Nat'l Sec. Counselors failed to provide details about the decision-making processes at issue that would allow the court to place documents within those processes. 960 F.Supp.2d at 190-91. Here, to the contrary, DOJ has provided detailed descriptions of the deliberative processes at issue and how the withheld documents fit into those processes.

2. Evaluation of DOJ's Deliberative Process Argument

Because DOJ has provided sufficient context for the Court to evaluate its deliberative process withholdings, the Court turns to that evaluation. To justify withholding information pursuant to the deliberative process privilege, an agency must demonstrate that the information is both (1) predecisional; and (2) deliberative. Coastal States , 617 F.2d at 866. The D.C. Circuit has suggested that "the agency must make the additional showing that disclosure would cause injury to the decision-making 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) (citing Army Times Publ'g Co. v. U.S. Dep't of Air Force , 998 F.2d 1067, 1071 (D.C. Cir. 1993) ). "The cases in this area are of limited help ... because the deliberative process privilege is so dependent upon the individual document and the role it plays in the administrative process." Coastal States , 617 F.2d at 867. However, the cases do establish certain principles to guide the Court's evaluation.

The evaluation of whether information is predecisional involves both temporal and qualitative elements. Documents are predecisional if they are "generated before the adoption of an agency policy." McKinley , 744 F.Supp.2d at 138 (quoting Coastal States , 617 F.2d at 866 ). They must also be "prepared in order to assist an agency decision maker in arriving at his decision." Grumman , 421 U.S. at 184, 95 S.Ct. 1491. Predecisional documents include "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Coastal States , 617 F.2d at 866. Documents that provide suggestions regarding ongoing agency processes are more likely to be predecisional. See Maydak , 362 F.Supp.2d at 326 (protecting information concerning a federal inmate that was used by agency officials as part of the continuing process of making decisions regarding the inmate's status); Wisdom , 266 F.Supp.3d at 105-06 (upholding the use of privilege where the withheld documents consisted of "discussions, deliberations, opinions and recommendations regarding" an evaluation of a bankruptcy trustee). But documents that embody final agency decisions are not predecisional. Rockwell Int'l Corp. v. DOJ , 235 F.3d 598, 602-03 (D.C. Cir. 2001) (noting that "as a general principle[, an] action taken by the responsible decision maker in an agency's decision-making process which has the practical effect of disposing of a matter before the agency is 'final' for purposes of FOIA," and therefore not exempt).

The evaluation of whether information is deliberative requires an analysis of how the information was used, and how it related to the deliberative process at issue. Deliberative information "reflects the give-and-take of the consultative process." Coastal States , 617 F.2d at 866. The analysis hinges on "whether disclosure of the information would 'discourage candid discussion within the agency,' " Access Reports , 926 F.2d at 1195 (quoting Dudman Commc'ns Corp. v. U.S. Dep't of Air Force , 815 F.2d 1565, 1567-68 (D.C. Cir. 1987) ), and whether the information "makes recommendations or expresses opinions on legal or policy matters." Vaughn v. Rosen , 523 F.2d 1136, 1143-44 (D.C.Cir. 1975). The mere fact that a document was "in the most general sense, part of an intra-agency discussion relating" to an agency decision, does not necessarily establish that the document was deliberative. Citizens for Responsibility & Ethics in Washington v. DHS , 648 F.Supp.2d 152, 158-59 (D.D.C. 2009) (holding that requests for factual information relating to a decision, and requests for assistance in gathering such information, were not deliberative).

A thorough evaluation of an agency's deliberative process withholdings is necessary because the "purpose o