National Security Archive v. Central Intelligence Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 12, 2013 Decided May 20, 2014
No. 12-5201
NATIONAL S ECURITY A RCHIVE ,
APPELLANT
v.
CENTRAL I NTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00724)
Allon Kedem argued the cause for appellant. With him
on the briefs was Clifford M. Sloan.
Gregory G. Katsas, Kristen A. Lejnieks, and Tiffany D.
Lipscomb-Jackson were on the brief for amicus curiae The
National Coalition for History in support of appellant.
Mitchell P. Zeff, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: ROGERS and K AVANAUGH , Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge
KAVANAUGH , with whom Senior Circuit Judge WILLIAMS
joins.
Dissenting opinion filed by Circuit Judge ROGERS.
KAVANAUGH , Circuit Judge: In the spring of 1961, some
1,400 Cuban exiles landed on the banks of the Bahía de
Cochinos, the Bay of Pigs. They were supported by the
Central Intelligence Agency and U.S. military. Their
objective was to conquer the beach, nullify Fidel Castro’s air
superiority with B-26 bombers and U.S. air support, and
hunker down until the inevitable democratic revolution. But
the revolution never came. Nor did sufficient supplies or air
support. Instead, American pilots were shot down, and most
of the exiles were captured and imprisoned.
The now-infamous operation has been the subject of
much debate and analysis. Within that genre, one account of
the Bay of Pigs invasion is unique because it was written in
the Central Intelligence Agency. Beginning in 1973, CIA
staff historian Dr. Jack B. Pfeiffer drafted what became a five-
volume opus, starting with the CIA’s plans for the air
operation and concluding with Dr. Pfeiffer’s assessment of
the operation.
Dr. Pfeiffer’s drafts of Volumes I through III ultimately
were revised and released to the public by the CIA. The CIA
also publicly released Dr. Pfeiffer’s draft of Volume IV. But
the CIA has not released the draft of Volume V.
In 2005, a non-profit research institute known as the
National Security Archive submitted a request to the CIA
under the Freedom of Information Act seeking, as relevant
here, Dr. Pfeiffer’s draft of Volume V. (To avoid confusion,
we will refer to the non-profit National Security Archive as

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the “FOIA requester.”) The CIA claims that the draft of
Volume V is exempt from disclosure under Exemption 5 of
FOIA. The District Court agreed and granted summary
judgment to the CIA. Our review of the District Court’s
decision is de novo, and we affirm.
* * *
Exemption 5 of the Freedom of Information Act protects
“inter-agency or intra-agency memorandums or letters which
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).
Exemption 5 encompasses the privileges that the Government
could assert in civil litigation against a private litigant, such as
the attorney-client privilege, the attorney work product
privilege, the presidential communications privilege, the state
secrets privilege, and the deliberative process privilege. See
Baker & Hostetler LLP v. Department of Commerce, 473 F.3d
312, 321 (D.C. Cir. 2006).
The CIA here invokes the deliberative process privilege.
A form of executive privilege, the deliberative process
privilege covers deliberative, pre-decisional communications
within the Executive Branch. One of the rationales for the
privilege is to encourage the candid and frank exchange of
ideas in the agency’s decisionmaking process. “Human
experience teaches that those who expect public
dissemination of their remarks may well temper candor with a
concern for appearances and for their own interests to the
detriment of the decisionmaking process.” United States v.
Nixon, 418 U.S. 683, 705 (1974). This is a concern as old as
the Republic. Indeed, at the Constitutional Convention itself,
the delegates agreed at the outset that none of the
deliberations would be shared with outsiders, and the records
were kept secret for more than 30 years. See Nixon v.

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Administrator of General Services, 433 U.S. 425, 447 n.11
(1977).
The modern application of the deliberative process
privilege rests on the same understanding that motivated the
Framers in Philadelphia: If agencies were “to operate in a
fishbowl, the frank exchange of ideas and opinions would
cease and the quality of administrative decisions would
consequently suffer.” Dudman Communications Corp. v.
Department of the Air Force, 815 F.2d 1565, 1567 (D.C. Cir.
1987) (internal quotation marks and citation omitted). In
other words, agency officials “should be judged by what they
decided, not for matters they considered before making up
their minds.” Russell v. Department of the Air Force, 682
F.2d 1045, 1048 (D.C. Cir. 1982) (quotation omitted).
The deliberative process privilege covers
communications that are pre-decisional and deliberative. See
Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir.
2006). To be pre-decisional, the communication (not
surprisingly) must have occurred before any final agency
decision on the relevant matter. See id. As this Court has
previously noted, the term “deliberative” does not add a great
deal of substance to the term “pre-decisional.” See Access
Reports v. Department of Justice, 926 F.2d 1192, 1195 (D.C.
Cir. 1991). The term “deliberative” in this context means, in
essence, that the communication is intended to facilitate or
assist development of the agency’s final position on the
relevant issue. See Russell, 682 F.2d at 1048.
In delineating the scope of the deliberative process
privilege, we have held that an agency’s official history is a
final agency decision. An agency history constitutes the
agency’s “official statement” concerning the agency’s prior
actions, and it helps educate future agency decisionmakers.

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Id. (Air Force history of the use of herbicide in Vietnam); see
Dudman Communications, 815 F.2d at 1566 (Air Force
history of involvement in South Vietnam).
In turn, we have held that a draft of an agency’s official
history is pre-decisional and deliberative, and thus protected
under the deliberative process privilege. See Dudman
Communications, 815 F.2d at 1568-69; Russell, 682 F.2d at
1048-49. Those precedents pose a substantial hurdle to the
FOIA requester’s claim in this case.
To overcome those precedents and obtain release of Dr.
Pfeiffer’s draft of Volume V, the FOIA requester asserts a
string of arguments. None is persuasive.
First, the FOIA requester points out that there was no
final CIA history that arose out of or corresponded to Volume
V. That is true, but we do not see the relevance of the point.
There may be no final agency document because a draft died
on the vine. But the draft is still a draft and thus still pre-
decisional and deliberative. See NLRB v. Sears, Roebuck &
Co., 421 U.S. 132, 151 n.18 (1975). A Presidential
speechwriter may prepare a draft speech that the President
never gives. A Justice Department aide may give the
Attorney General a draft regulation that the Attorney General
never issues. Those kinds of documents are no less drafts
than the drafts that actually evolve into final Executive
Branch actions. Moreover, the writer does not know at the
time of writing whether the draft will evolve into a final
document. But the writer needs to know at the time of writing
that the privilege will apply and that the draft will remain
confidential, in order for the writer to feel free to provide
candid analysis. A privilege contingent on later events – such
as whether the draft ultimately evolved into a final agency
position – would be an uncertain privilege, and as the

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Supreme Court has said, an uncertain privilege is “little better
than no privilege at all.” Upjohn Co. v. United States, 449
U.S. 383, 393 (1981); see also Swidler & Berlin v. United
States, 524 U.S. 399, 408-09 (1998). In short, to require
release of drafts that never result in final agency action would
discourage innovative and candid internal proposals by
agency officials and thereby contravene the purposes of the
privilege.
Second, the FOIA requester says that the CIA has
released similar information regarding the Bay of Pigs
operation, including the other volumes. However, an agency
does not forfeit the benefit of a FOIA exemption simply
because of its prior decision to voluntarily release other
similar information. See Army Times Publishing Co. v.
Department of the Air Force, 998 F.2d 1067, 1071 (D.C. Cir.
1993) (Air Force had not “‘waived’ its right to claim an
exemption from disclosure simply because it has released
information similar to that requested”). Indeed, penalizing
agencies in that way would discourage them from voluntarily
releasing information, which would thwart the broader
objective of transparent and open government.
Third, the FOIA requester claims that the CIA has
identified no concrete harm that would result from release of
the draft of Volume V. But as we have said before,
“Congress enacted FOIA Exemption 5 . . . precisely because
it determined that disclosure of material that is both
predecisional and deliberative does harm an agency’s
decisionmaking process.” McKinley v. Board of Governors of
the Federal Reserve System, 647 F.3d 331, 339 (D.C. Cir.
2011). The harm from release is, among other things, the
harm to the candor of present and future agency
decisionmaking. Courts may not “second-guess that
congressional judgment on a case-by-case basis.” Id.

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Fourth, the FOIA requester contends that the passage of
time since Dr. Pfeiffer wrote his draft renders the deliberative
process privilege inapplicable here. According to the FOIA
requester, the CIA’s interest in protecting any contentious or
sensitive issues discussed in the draft of Volume V has
diminished over time. But unlike some statutes, such as
certain provisions of the Presidential Records Act, see 44
U.S.C. § 2204(a), Exemption 5 of FOIA does not contain a
time limit. 1 We must adhere to the text of FOIA and cannot
judicially invent a new time limit for Exemption 5. See
generally Milner v. Department of the Navy, 131 S. Ct. 1259
(2011).
Moreover, privileges that are intended to facilitate candid
communication, such as the deliberative process privilege,
generally do not have an expiration date. That makes sense
because such a privilege otherwise would not fully serve its
purposes. As we have noted, in order for a privilege to
encourage frank and candid debate, the speaker or writer must
have some strong assurance at the time of the communication
that the communication will remain confidential. Premature
release of material protected by the deliberative process
privilege would have the effect of chilling current and future
agency decisionmaking because agency officials – realizing
that the privilege evaporates over time – would no longer
have the assurance that their communications would remain
protected. And without that assurance, they in turn would not
feel as free to advance the frank and candid ideas and advice
that help agencies make good decisions. See generally
1 By its terms, moreover, the Presidential Records Act does not
and could not “limit . . . any constitutionally-based privilege which
may be available to an incumbent or former President.” 44 U.S.C.
§ 2204(c)(2). So the time limit in that Act, as applied to those
privileges, changes the procedure for asserting the privilege, not the
scope or duration of the privilege.

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Swidler & Berlin, 524 U.S. at 407-08; Access Reports, 926
F.2d at 1196. In addition, looking backward, premature
release of privileged information would risk embarrassment
of individuals who had put forth certain ideas on the
understanding and assurance that their communications would
remain confidential. To avoid such an unfair bait and switch,
among other reasons, the Supreme Court has recognized that a
privilege designed to encourage candid communications must
be durable and lasting. See Swidler & Berlin, 524 U.S. at
407-08 (involving attorney-client privilege). In short, we
reject the FOIA requester’s argument that the deliberative
process privilege applicable to Dr. Pfeiffer’s draft has
somehow expired.
Fifth, even if its arguments for the entire draft of Volume
V are unavailing, the FOIA requester contends that some
portions of the draft may contain factual material that is not
protected by the deliberative process privilege and is
“reasonably segregable.” 5 U.S.C. § 552(b). The District
Court concluded that the entirety of the draft is protected by
Exemption 5. The District Court’s decision adheres to our
precedents in this context. Our cases have made clear that a
draft agency history may not be dissected by the courts in the
manner suggested by the FOIA requester here. See Dudman
Communications, 815 F.2d at 1568-69; Russell, 682 F.2d at
1048-49. In producing a draft agency history, the writer
necessarily must “cull the relevant documents, extract
pertinent facts, organize them to suit a specific purpose,” and
“identify the significant issues.” Mapother v. Department of
Justice, 3 F.3d 1533, 1538 (D.C. Cir. 1993). In doing so, “the
selection of the facts thought to be relevant” is part of the
deliberative process; it necessarily involves “policy-oriented
judgment.” Id. at 1539 (internal quotation marks omitted);
see also Horowitz v. Peace Corps, 428 F.3d 271, 276-77
(D.C. Cir. 2005); Wolfe v. Department of Health & Human

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Services, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc); Lead
Industries Association, Inc. v. OSHA, 610 F.2d 70, 85 (2d Cir.
1979).
Applying that reasoning in Russell and Dudman, we held
that draft versions of official Air Force histories were exempt
from disclosure. See Dudman Communications, 815 F.2d at
1568-69; Russell, 682 F.2d at 1048-49. We must reach the
same result here when assessing Dr. Pfeiffer’s draft history.
In the narrow confines of this case, which involves a draft
agency history, we agree with the District Court that the draft
of Volume V is exempt in its entirety under Exemption 5. To
be clear, as we emphasized in Dudman, if a person “requests
particular factual material – e.g., material relating to an
investigation of a war crime – an agency cannot withhold the
material merely by stating that it is in a draft
document. . . . The exemption plainly applies in this case
because [the FOIA requester] asked not for particular factual
material, but for the draft in which [the FOIA requester]
thought the material could be found.” 815 F.2d at 1569.
* * *
We affirm the judgment of the District Court.
So ordered.

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ROGERS, Circuit Judge, dissenting. In 2005, the National
Security Archive requested disclosure of “[t]he fourth and fifth
volumes of the Official History of the Bay of Pigs Operation”
pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. Because the draft of Volume IV (entitled “The Taylor
Committee Investigation of the Bay of Pigs”) was publicly
released in response to the FOIA request, the request at issue is
for release of a draft of Volume V (entitled “CIA’s Internal
Investigation of the Bay of Pigs Operation”) that was prepared
with the other four volumes between 1973 and 1984 by a staff
historian at the Central Intelligence Agency. Volumes I through
IV have been publicly released; release of the fifth volume has
been withheld by the agency pursuant to FOIA Exemptions 1, 3
and 5. The district court upheld its non-release based on
Exemption 5. Because the agency’s current declarations fail to
meet its burden to show the draft is fully protected from
disclosure under Exemption 5, I would remand the case to the
district court for further consideration.
Congress enacted FOIA Exemption 5, incorporating the
deliberative process privilege, to protect against the harm to an
agency’s decisionmaking process that results from the disclosure
of material that is both predecisional and deliberative. See
McKinley v. Bd. of Governors of Fed. Reserve, 647 F.3d 331,
339 (D.C. Cir. 2011); accord Wolfe v. Dep’t of Health & Human
Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc). The
exemption is designed to protect “materials [that] can reasonably
be said to embody an agency’s policy-informed or -informing
judgmental process.” Petroleum Info. Corp. v. U.S. Dep’t of
Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992). C o n s i s t e n t
with “the [FOIA’s] goal of broad disclosure,” the Supreme
Court has “insisted that the exemptions be given a narrow
compass.” Milner v. Dep’t of Navy, 131 S. Ct. 1259, 1265
(2011) (citations and internal quotation marks omitted). More
particularly, the Supreme Court has instructed that the
deliberative process privilege under Exemption 5 “has finite

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limits,” EPA v. Mink, 410 U.S. 73, 87 (1973) and “requires
different treatment for materials reflecting deliberative or
policy-making processes on the one hand, and purely factual,
investigative matters on the other,” id. at 89 (footnote omitted).
This court also has emphasized that the privilege “serves
to protect the deliberative process itself, not merely documents
containing deliberative material.” Mapother v. Dep’t of
Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). “A document is
‘predecisional’ if it precedes, in temporal sequence, the
‘decision’ to which it relates,” and “[a]ccordingly . . . a court
must be able ‘to pinpoint an agency decision or policy to which
the document contributed.’” Senate of Puerto Rico v. U.S.
Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (quoting
Paisley v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1981)). Although
a document need not “contribute to a single, discrete decision,”
Access Reports v. Dep’t of Justice, 926 F.2d 1192, 1196 (D.C.
Cir. 1991), an agency must “identify[] the decisionmaking
process to which [the document] contributed,” id. at 1197. The
court has thus treated certain draft agency histories as protected
from disclosure under Exemption 5, reasoning that the
“disclosure of editorial judgments” made during the agency’s
deliberative process “would stifle the creative thinking and
candid exchange of ideas necessary to produce good historical
work.” Dudman Commc’ns Corp. v. Dep’t of Air Force, 815
F.2d 1565, 1569 (D.C. Cir. 1987); see Russell v. Dep’t of Air
Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). In each case, the
court shielded draft histories from disclosure because the
agency’s deliberative process would be revealed by means of
“‘a simple comparison between the pages sought and the final,
published document,” which “would reveal what material
supplied by subordinates senior officials judged appropriate for
the history and” what they did not. Mapother, 3 F.3d at 1538
(quoting Russell, 682 F.2d at 1049, and noting that Dudman

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Commc’ns, 815 F.2d at 1569, reaffirmed Russell’s rationale).
Here, the agency identifies the “final history of the Bay of
Pigs Operation” as the relevant agency decision, see
Appellee’s Br. 10, and defends withholding the draft of
Volume V on the ground that release “could be expected to . . .
discourage open and frank deliberations among the History
Staff” and “lead to public confusion,” Decl. of David S.
Robarge ¶ 9 (Nov. 17, 2011); see Jordan v. U.S. Dep’t of
Justice, 591 F.2d 753, 772–73 (D.C. Cir. 1978) (en banc). The
Chief Historian states, categorically, that release of “any . . .
draft history at any stage before its completion” as an official
agency publication “could be expected to . . . discourage open
and frank deliberations.” Robarge Decl. ¶ 9 (emphasis added).
The Chief Historian views “[t]he back-and-forth peer review
process” as “critical to ensuring that any final history is both
objective and accurate.” Id. ¶ 10. According to the Chief
Historian, the “histories provide . . . intelligence officers,
managers and decision-makers with . . . shared institutional
memory regarding historical events for use in current decision-
making.” Id. ¶ 4.
“[T]he key question in Exemption 5 cases” is “whether the
disclosure of materials would expose an agency’s
decisionmaking process in such a way as to discourage candid
discussion within the agency and thereby undermine the
agency’s ability to perform its functions.” Dudman Commc’ns,
815 F.2d at 1568. All except the draft of Volume V of the
History have been publicly released. In response to a related
FOIA request, the agency released Volumes I, II, and IV with
“minimal redactions” under FOIA Exemptions 1 and 3, in 2011.
See Decl. of Martha Lutz, Information Review Officer ¶ 14
(Sept. 26, 2011). Volume III was released in 1998 pursuant to
the Kennedy Assassination Records Act. Id. ¶ 16.
Significantly as well, the agency released Volume IV in 1987 as

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a “draft document,” id. ¶ 17, “before its completion” as an
official agency document, Robarge Decl. ¶ 9, in response to the
staff historian’s own FOIA request and re-released the draft
with fewer redactions in response to the current FOIA request,
see Lutz Decl. ¶ 17.
Of course, an agency does not “‘waive[]’ its right to claim
an exemption from disclosure simply because it has released
information similar to that requested.” Army Times Publ’g Co.
v. Dep’t of Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993).
But at this point the agency’s FOIA-related release of the draft
of Volume IV appears from the record to be “fundamentally
inconsistent with [the agency’s categorical] claim that release
of [the draft of Volume V] would threaten the decisionmaking
process of the agency.” Id. at 1070. Even assuming the draft
of Volume V is predecisional, there is neither a final version of
Volume V nor anything in the record to suggest that comparing
the draft with the other four volumes would implicate the
rationale of Dudman Communications and Russell. The draft of
Volume V, moreover, was rejected at the first stage of the
agency’s review process, see Lutz Decl. ¶ 20, and was not part
of the agency “give-and-take of the deliberative process by
which the decision itself is made,” Vaughn v. Rosen, 523 F.2d
1136, 1144 (D.C. Cir. 1975).
Yet today the majority reads Dudman Communications and
Russell as calling for a per se rule of Exemption 5 protection for
draft agency histories. See Op. at [5]. The court states that “a
draft of an agency’s official history is pre-decisional and
deliberative, and thus protected under the deliberative process
privilege,” id. (citing Dudman Commc’ns, 815 F.2d at 1568–69,
and Russell, 682 F.2d at 1048), and that although a draft history
may “die[] on the vine . . . . the draft is still a draft and thus still
pre-decisional and deliberative,” id. Designation of a document
as a draft, however, “does not end the inquiry,”Arthur Andersen

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& Co. v. IRS, 679 F.2d 254, 257 (D.C. Cir. 1982) (citing
Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866
(D.C. Cir. 1980)), much less demonstrate that an agency has
met its burden to justify its withholding under Exemption 5 by
identifying the role of the individual document in the
deliberative process, see, e.g., Access Reports, 926 F.2d at 1196;
Coastal States, 617 F.2d at 868. It is one thing to conclude that
disclosure of a draft could “stifle . . . creative thinking and
candid exchange of ideas,” Dudman Communications, 815 F.2d
at 1569, where it is possible to identify editorial judgments by
comparing the draft and the final version, and quite another to
conclude stifling could occur where there is no final version and
the agency has identified the requested document as reflecting
no more than the individual staff historian’s view. Troubling as
well is the fact that the agency has criticized the staff historian’s
work on the draft of Volume V in a declaration filed in the
public record of the instant case — stating that in 1981 and
1984 the Chief Historian thought the draft “had serious
deficiencies as a historical study” and “offers a polemic of
recriminations against CIA officers who later criticized the
operation, and against those U.S. officials who [the staff
historian] contends were responsible for its failure,” Decl. of J.
Kenneth McDonald, CIA Chief Historian ¶¶ 6, 13 (Nov. 4,
1987) — while denying any opportunity for the work to speak
for itself (even in redacted form); these circumstances, no less
than disclosure, could cause current and future staff historians
to curtail the candor and creative flair that the agency values as
part of its History process.
Neither the majority opinion nor the agency’s current
declarations explain why this particular draft document is
deliberative, i.e., why release of the draft of Volume V “would
expose an agency’s decisionmaking process in such a way as to
discourage candid discussion within the agency and thereby
undermine the agency’s ability to perform its functions.”

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Dudman Commc’ns, 815 F.2d at 1568. The agency claims that
the draft of Volume V is “reflective of the iterative review
process of the CIA’s History Staff” and “reflects the give and
take of the consultative process.” Robarge Decl. ¶ 16. But the
agency also avers that the draft of Volume V “never proceeded
beyond the first stage of the CIA review process,” Lutz Decl.
¶ 20, “was never circulated within the [a]gency,” Robarge Decl.
¶ 15, “does not incorporate information and perspectives that
would arise from the internal review process,” id. ¶ 14
(emphasis added), and “represents the view of merely one staff
historian,” id. ¶ 12. From the current record we know the Chief
Historian in 1987 addressed potential harm from release of the
draft of Volume V. See McDonald Decl. ¶¶ 13–14. But the
agency’s subsequent declarations do not incorporate that
analysis, adopting instead only the description of the History
development process, see Lutz Decl. ¶ 22, and the explanation
of why the draft of Volume V was rejected, see Robarge Decl.
¶ 13. Notably, the 1987 declaration assumed that the draft of
Volume V “will eventually go through the full revision, editing
and review process” and “later drafts or the final form of this
history may be compared to [the staff historian]’s version to
determine what changes in evidence, argument and
interpretation were made in completing this work.” McDonald
Decl. ¶ 14. In 2011, however, the Chief Historian advised that
“[a]lthough Dr. McDonald hoped that Volume V could be
edited to a final version, these efforts were unsuccessful.”
Robarge Decl. ¶ 15. And, of course, the 1987 declaration
preceded the agency’s subsequent decisions to release other
volumes of the “unfinished” History, Robarge Decl. ¶ 12,
including a draft of Volume IV. As noted, the 1987 explanation
for withholding the draft of Volume V appears to apply equally
to the draft of Volume IV, which the agency has twice publicly
released, and no agency declaration has explained why the two
drafts should be treated differently for purposes of Exemption
5. The rationale of Dudman Communications and Russell also

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affords no dispositive answer in the absence of a final version
of Volume V with which to compare the draft now sought.
Given the post-1987 public releases of the other volumes of the
“unfinished” History, and because “disclosure, not secrecy, is
the dominant objective of the Act,” Dep’t of Air Force v. Rose,
425 U.S. 352, 361 (1976), the agency’s present reliance on a
categorical approach for withholding the draft of Volume V
under Exemption 5 does not satisfy the agency’s burden under
the FOIA.
To the extent the majority’s opinion suggests that agency
draft histories are also excused from the statutory requirement
that any “reasonably segregable,” non-exempt material be
released to the requester, see 5 U.S.C. § 552(b), Dudman
Communications indicated otherwise. There the court rejected
the argument that withholding release of agency histories under
Exemption 5 “will allow agencies to hide all manner of factual
information from public view,” stating:
Our holding . . . can have no such effect. If a person
requests particular factual material — e.g., material
relating to an investigation of a war crime — an
agency cannot withhold the material merely by stating
that it is in a draft document. In such a case, the
agency will usually be able to excise the material from
the draft document and disguise the material’s source,
and thus the agency will usually be able to release the
material without disclosing any deliberative process.
When the agency can take such steps, it may not
withhold the information under Exemption 5.
Dudman Commc’ns, 815 F.2d at 1569; see Vaughn, 523 F.2d at
1143–44; Arthur Andersen, 679 F.2d at 257–58. The court has
“shelter[ed] factual summaries that were written to assist the
making of a discretionary decision,” Mapother, 3 F.3d at 1539

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(citing Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63
(D.C. Cir. 1974)), and it is conceivable that a draft history could
include factual summaries that reflect deliberative judgments.
Notwithstanding his criticisms of the staff historian’s work on
a “preliminary draft” of Volume V, the Chief Historian stated
in 1987 that the “research material and drafts will doubtless be
of value” to a staff historian assigned to complete the History.
McDonald Decl. ¶ 6. This is not a sufficient response here.
Exemption 5 reaches factual material only if it is
“assembled through an exercise of judgment” and does not
extend, for example, to a mere “inventory, presented in
chronological order,” Mapother, 3 F.3d at 1539. Before
granting summary judgment the district court did not review the
draft of Volume V in camera — review that the Supreme Court
has observed is “often . . . required . . . in order to determine
which [documents] should be turned over or withheld,” Mink,
410 U.S. at 88 — and the agency has provided this court no
basis to conclude that all factual material in the draft history
reflects deliberative judgments. The declaration of the agency’s
Information Review Officer sheds no light on segregability,
stating only that the draft of Volume V “contains no reasonably
segregable information since the entire document is a draft.”
Lutz Decl. ¶ 25. Such a “vague and conclusory” statement is
“inadequate” to support summary judgment. PHE, Inc. v. Dep’t
of Justice, 983 F.2d 248, 252–53 (D.C. Cir. 1993). “[A] blanket
claim of privilege under Exemption 5,” Army Times Publ’g, 998
F.2d at 1071, appears, at this point, to be unwarranted in light
of the release of a draft of Volume IV and the agency’s
acknowledgments about the draft of Volume V, namely that it
contains only “a small amount of classified information,” Lutz
Decl. ¶ 14, and that it addresses a 1961 investigation by the

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agency’s Inspector General whose report the agency released in
1997.1
Neither Dudman Communications nor Russell cited the
segregability provision in 5 U.S.C. § 552(b). Since those cases
were decided this court has held that, regardless of whether a
request for segregability is made, “‘a district court clearly errs
when it approves the government’s withholding of information
under the FOIA without making an express finding on
segregability,’” Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir.
2007) (quoting PHE, Inc., 983 F.2d at 252), and that “failure to
fulfill this responsibility requires a remand,” id. The district
court stated that “the entirety of Volume V is covered by
Exemption 5,” Nat’l Sec. Archive v. CIA, 859 F. Supp. 2d 65, 68
n.2 (D.D.C. 2012), but this statement was made in the context
of explaining why it was unnecessary to address the agency’s
invocation of FOIA Exemptions 1 and 3, not whether any
portions of the draft of Volume V were reasonably segregable
and non-exempt.
Accordingly, I would reverse the grant of summary
judgment and remand the case to the district court for further
consideration. See Citizens for Responsibility & Ethics in
Wash. v. U.S. Dep’t of Justice, No. 12-5223, slip op. at 18 (D.C.
Cir. Apr. 1, 2014). The agency may be able to demonstrate its
withholding of the entirety of the draft of Volume V is justified
under Exemption 5, but its current declarations do not meet its
“burden of proving,” the categorical applicability of the
deliberative process privilege, Ancient Coin Collectors Guild v.
See Appellant’s Br. 13 n.5 (citing Inspector General’s 1
Survey of the Cuban Operation and Associated Documents (1961)
(indicating release through CIA Historical Review Program in 1997),
available at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB341/
IGrpt1.pdf)

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U.S. Dep’t of State, 641 F.3d 504, 509 (D.C. Cir. 2011); see
U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press,
489 U.S. 749, 755 (1989). Likewise, it is possible that
segregating and releasing non-exempt portions of the draft of
Volume V may be unwarranted, but the district court has yet to
make that requisite “express finding.” On remand, the district
court’s reevaluation of Exemption 5 should include
consideration of the effect of the passage of time; the agency is
“not arguing, and has never argued, that a court should never
consider the passage of time in determining whether a document
is protected by Exemption 5,” Appellee’s Br. 19, and it has
identified the draft of Volume V as “represent[ing] the view of
merely one staff historian,” Robarge Decl. ¶ 12, expressed thirty
years ago about events that occurred over fifty years ago.
Thereafter, as necessary, the district court should address the
applicability of Exemptions 1 and 3 also invoked by the agency.
I respectfully dissent.

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