SEMPER FIDELIS – ALWAYS FAITHFUL
Enclosure 2, September 20, 2017 Sample Correspondence
at 14 (ordering disclosure of advisory document written by agency general counsel and "thereafter adopted as the official position of
the agency"); Bhd. of Locomotive Eng'rs v. Surface Transp. Bd., No. 96-1153, 1997 WL 446261, at **4-5 (D.D.C. July 31, 1997)
(finding that staff recommendation was adopted in both written decision and commission vote); Burkins v. United States, 865 F.
Supp. 1480, 1501 (D. Colo. 1994) (holding that final report's statement that findings are same as those of underlying memorandum
constituted adoption of that document); Atkin v. EEOC, No. 91-2508, slip op. at 23-24 (D.N.J. July 14, 1993) (holding
recommendation to close file not protectible where it was contained in agency's actual decision to close file); cf. Tax Analysts, 117
F.3d at 617 (finding that documents "routinely used" and "relied upon by agency personnel," in a particular factual setting, were
"statements of the agency's legal position" and accordingly not protectible).
113. Coastal States, 617 F.2d at 866; see Pentagon Fed. Credit Union v. Nat'l Credit Union Admin., No. 95-1475, slip op. at 5-8
(E.D. Va. June 7, 1996) (finding that board of directors' action "embracing" recommendations in "substantially same language" made
documents postdecisional); Pension Actuaries, 746 F. Supp. at 192 (ordering disclosure simply on the basis that the IRS's budget
assumptions and calculations were "relied upon by the government" in making its final estimate for the President's budget); cf.
Skelton, 678 F.2d at 39 n.5 (declining to express opinion on whether reference must be to specific portion of document for express
incorporation of that portion to occur).
117. See, e.g., EPA v. Mink, 410 U.S. 73, 91 (1973) (refusing to extend deliberative process privilege protection to "factual
material otherwise available on discovery merely [on the basis that] it was placed in a memorandum with matters of law, policy, or
opinion"); Coastal States, 617 F.2d at 867 (citing Mink, 410 U.S. at 93); Bilbrey v. United States Dep't of the Air Force, No. 00-0539,
slip op. at 10-11 (W.D. Mo. Jan. 30, 2001) (holding privilege inapplicable to factual statements underlying predecisional
recommendations), aff'd, No. 01-1789, 2001 WL 1222471, at *1 (8th Cir. Oct. 16, 2001) (unpublished table decision); Sw. Ctr. for
Biological Diversity, 170 F. Supp. 2d at 941 (concluding that release of "raw research data" would not expose agency's deliberative
process, on grounds that such data were not recommendations, not subject to alteration upon further agency review, and not
"selective" in character).
118. 410 U.S. at 87-88 (1973).
119. See Montrose Chem. Corp. v. Train, 491 F.2d 63, 66 (D.C. Cir. 1974); see also Rashid v. HHS, No. 98-0898, slip op. at 11-
12 (D.D.C. Mar. 2, 2000) (declining to extend the privilege to agency requests for outside experts' evaluations on the basis that
although "[t]he requests were predecisional, . . . they were not deliberative in that they did not 'reflect the give-and-take of the
consultative process'" (quoting Coastal States, 617 F.2d at 866)); D.C. Technical Assistance Org. v. HUD, No. 98-0280, slip op. at 4-
5 (D.D.C. July 29, 1999) (ordering release of factual portion of an otherwise deliberative record because it "does not evaluate the
actions taken, but only describes them"); Horsehead, No. 94-1299, slip op. at 16 (D.D.C. Oct. 1, 1996) ("EPA has not demonstrated
how the disclosure of either the testing processes . . . or the data from that testing involves [sic] its deliberative process.").
141. Sears, 421 U.S. at 150; Judicial Watch, Inc. v. Dep't of Justice, 306 F. Supp. 2d 58, 70 (D.D.C. 2004) (protecting "handwritten
notes" on an invitation to the Attorney General, because disclosure "'would reveal what the staff member who wrote the notes