Attachment to June 25, 2018 F. James Loprest Jr. E-mail

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

On June 25, 2018 F. James Loprest Jr. sent an e-mail at 4:38 PM with an attachment or attachments called "Pereira ; Pereira and Incomplete NTAs.Applying Guamanrrigra.docx"

Please produce the attachments to this e-mail.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Matthew Hoppock

Thank you. The FOIA request is 2018-39518 and is at page 5 of the 61-page set of documents released here: https://cdn.muckrock.com/foia_files/2018/10/04/2018-39518_Doc_61_pgs.pdf

The attachment to the James Loprest e-mail is a legal guide on applying a certain section of the law and agency guidance on responding to the Pereira decision. Exemption 5 only 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). The document is not exempt and should be produced.

First, non-case specific legal summaries are "routinely" disclosed in civil litigation. U.S. v. Weber Aircraft Corp., 465 U.S. 792, 799(1984). Thus, the document in question doesn't meet even the initial threshold to place it within the ambit of exemption b5. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 11 (2001)

Second, none of the requirements for invoking the deliberative process privilege exist here. The first requirement is that the document be "predecisional" - i.e. "antecedent to the adoption of an agency policy." Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993) ("The deliberative process privilege protects materials that are both predecisional and deliberative." (citing Petroleum Info. Corp. v. U.S. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992))).

The e-mail attachment requested here does not contain deliberative process material, because it was not written or intended to be about any particular case or decision. It appears to simply be a summary of the current law.

The public has a right to know how the agency is applying certain law (and how it is responding to Supreme Court precedent). Documents that do not reveal the deliberative process but instead simply reveal the agency's conclusions in how it will respond to the law (or its summaries of the law) are not protected by this exemption.

Finally, even if the attachment had a deliberative opinion by its author, that portion of the attachment can be redacted if necessary .