A recent decision sheds light on the scope of FOIA deliberate process exemption relating to attorney communications about preliminary polices or actions in public records. National Immigrant Justice Center v. UnitedStates Department of Justice, No. 19-2088 (7th Cir. 2020).


The National Immigration Justice Center (“Center”) filed a FOIA request with the Department of Justice (“DOJ”) seeking certain communications between the Attorney General’s Office and any Office of Immigration Litigation or Office of Solicitor General attorneys relating to 11 certified immigration cases. The DOJ withheld 4,000 responsive pages under the federal FOIA’s “deliberative process” privilege exemption which protects attorney-client, work product, and deliberative communications


On appeal, the 7th Circuit Court of Appeals determined that the DOJ properly withheld these records under the deliberative process exemption. Specifically, the records contained attorney suggestions on draft opinions and deliberative communications about certain decisions created at the stage when the Attorney General certifies immigration cases for a decision. Contrary to the Center’s argument, the withheld records were not ex parte communications, because there was no pending litigation when the documents were created.


Post Authored by Eugene Bolotnikov, Ancel Glink