United States District Court, E.D. Michigan, Southern Division
USAMA J. HAMAMA, et al., Petitioners,
REBECCA ADDUCCI, et al., Respondents.
OPINION & ORDER RE OUTSTANDING SEALING
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
matter is before the Court on the parties' February 14,
2019 joint statement of issues (Dkt. 529). The Court
addressed all of the issues raised in the joint statement in
its March 12, 2019 Order (Dkt. 532), with the exception of
issues related to provisionally sealed items. Because the
Government was still reviewing the provisionally sealed
documents, the Court ordered a supplemental Government brief.
The Government filed its supplemental brief on March 15, 2019
(Dkt. 534). The Court recently ordered the Government to
support its position further on sealing (Dkt. 580), which it
did on August 1, 2019 (Dkt. 582).
joint statement, Petitioners identified a number of
provisionally sealed items that they believe should be
unsealed. They identified Petitioners' memorandum
regarding sanctions for discovery violations (Dkt. 454),
Petitioners' opposition to the Government's motion
for an extension of the discovery deadline and request for
expedited reply briefing (Dkt. 363), and Petitioners'
statement regarding consolidation of preliminary injunction
hearing with a trial on the merits (Dkt. 439). With respect
to the Petitioners' statement regarding consolidation of
preliminary injunction hearing (Dkt. 439), the Government
does not object to the matter being made public. The Court
will address the other two items in turn.
Petitioners' memorandum regarding sanctions (Dkt.
memorandum regarding sanctions includes two exhibits that
have been provisionally sealed. See Exs. 3 & 4
to memorandum regarding sanctions (Dkt. 454-4, 454-5). The
Government argues that because the Court dismissed
Petitioners' motion without prejudice (Dkt. 532), this
matter is no longer ripe for consideration. Gov't Supp.
Br. at 1-2. This argument is a nonstarter. The exhibits are
part of a court record. The only question is whether there is
a basis to keep these documents from the public domain.
however, the Government argues that the exhibits should
remain sealed for the reasons set for in its opposition to
the motion to file the documents publicly (Dkt. 488). The
Court will address each document in turn.
3 (Dkt. 454-4) is comprised of email correspondence among
State Department and ICE officials regarding the status of
obtaining travel documents from Iraq. The Government argues
that these communications should remain sealed for three
reasons. First, it argues that the emails are protected by
the deliberative process privilege. Gov't Opp'n at
7-8. Second, the Government argues that disclosure of these
emails could put Iraqi officials in danger and jeopardize
diplomatic relations with Iraq. Gov't Opp'n at 8-9.
Finally, the Government argues, without any explanation, that
the law enforcement privilege applies. Id. at 10.
support of its argument that the deliberative process
privilege applies to Exhibit 3, the Government filed the
declaration of Robert Waller, Director of Iraq Affairs in the
Near Eastern Affairs Bureau. According to Waller, the
deliberative process privilege applies because these
communications contain “opinions, impressions, and
proposals [that] represent part of an ongoing policy-making
process, and do not reflect a final decision that would be
made by a senior State Department official.” Waller
Decl., Ex A to Gov't Opp'n, ¶ 9 (Dkt. 488-1).
The Court disagrees with Waller's characterization of the
email thread and that the deliberative process privilege
deliberative process privilege protects from discovery
‘documents reflecting advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated.'” E.E.O.C. v. Burlington N. &
Santa Fe Ry. Co., 621 F.Supp.2d 603, 606 (W.D. Tenn.
2009) (quoting NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 149 (1975)). “The primary purpose served by
the deliberative process privilege is to encourage candid
communications between subordinates and superiors.”
Schell v. U.S. Dep't of Health & Human
Servs., 843 F.2d 933, 939 (6th Cir. 1988). To fall
within the privilege, the information must be both (i)
pre-decisional and (ii) deliberative. Id. at 940.
document is predecisional when it is ‘received by the
decisionmaker on the subject of the decision prior to the
time the decision is made.'” Id. (quoting
Sears, 421 U.S. at 151). However, the privilege does
not turn “on the ability of an agency to identify a
specific decision in connection with which a memorandum is
prepared. Agencies are, and properly should be, engaged in a
continuing process of examining their policies; this process
will generate memoranda containing recommendations which do
not ripen into agency decisions.” Sears, 421
U.S. at 153 n.18.
document is deliberative when it “reflects the
give-and-take of the consultative process, ” meaning it
“covers recommendations, draft documents, proposals,
suggestions, and other subjective documents which reflect the
personal opinions of the writer rather than the policy of the
agency.” Id. (internal citation and quotations
omitted). It is well-settled that the deliberative process
privilege “protects internal communications of a
governmental agency when they are deliberative in nature, but
not when they are purely factual.” Burlington,
621 F.Supp.2d at 606 (citing Sears, 421 U.S. at
149). “Factual materials are generally not privileged
unless they are inextricably intertwined with policy-making
processes.” Id. (quoting Trentadue v.
Integrity Comm., 501 F.3d 1215, 1227 (10th Cir. 2007)).
“[P]urely factual, investigative matters that are
severable without compromising the private remainder of the
documents do not enjoy the protection of the
exemption.” Norwood v. F.A.A., 993 F.2d 570,
577 (6th Cir. 1993) (citations and quotations omitted).
are to apply a “flexible, commonsense approach to
factual/deliberative classifications” and “must
be careful not to become victims of their own
semantics.” Trentadue v. Integrity Comm., 501
F.3d 1215, 1227 (10th Cir. 2007). “In some
circumstances . . . the disclosure of even purely factual
material may so expose the deliberative process within an
agency that it must be deemed exempted.” Id.
“[T]he Ninth Circuit has adopted a
‘process-oriented' or ‘functional' test
that exempts ‘[f]actual materials . . . to the extent
that they reveal the mental processes of
decisionmakers.'” Id. (quoting
Nat'l Wildlife Fed'n v. U.S. Forest Serv.,
861 F.2d 1114, 1119 (9th Cir. 1988)). By contrast, the
Eleventh Circuit has explicitly rejected that approach,
holding instead that “[t]he fact/opinion distinction
continues to be an efficient and workable standard for
separating out what is, and what is not, deliberative.”
Id. at 1228 (quoting Fla. House of
Representatives v. U.S. Dep't of Commerce, 961 F.2d
941, 949 (11th Cir. 1992)).
the above principles, the Court finds that the information
contained in Exhibit 3 does not fall within the deliberative
process privilege. The email communications in Exhibit 3 do
not stray into the realm of “documents reflecting
advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions
and policies are formulated.” Sears, 421 U.S.
at 149. The emails simply update the State Department and ICE
officials on the current state of affairs with respect to
obtaining travel documents from Iraq. These are not internal
emails deliberating on how best to obtain travel documents
from Iraq. If anything, the communications reflect that it is
out of the email recipients' hands for the time being.
Indeed, at the end of the email thread, after being apprised
of the current situation, John Schultz says that he hopes
that the ...