Yates Email FOIA Litigation Remanded

The United States Court of Appeals reversed and remanded an order dismissing Judicial Watch’s FOIA request for emails from Sally Yates’ DOJ email account

One week after taking the oath of office, President Donald Trump signed Executive Order Number 13,769 suspending entry into the United States of foreign nationals from seven majority-Muslim countries. Critics immediately challenged the Executive Order, and on January 30, Acting Attorney General Sally Yates issued a four paragraph statement declaring that, “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.” President Trump fired Yates later that day. Some two months later, Judicial Watch filed suit under the Freedom of Information Act, seeking attachments to four emails sent to and from Yates’s DOJ email account on the same day that she issued her statement.

Thee district court had granted summary judgment

Because DOJ has failed to satisfy its burden to demonstrate that the attachments are deliberative, we reverse the district court’s grant of summary judgment. Because the district court chose to rely on the government’s declarations, and because we expect the attachments are relatively brief, we remand with instructions to review the attachments in camera and determine, consistent with the principles set forth herein, whether they qualify as deliberative. Should the district court conclude that the attachments are deliberative, it must then determine, consistent with the principles set forth in Reporters Committee, whether DOJ also satisfied its burden under the FOIA Improvement Act. 3 F.4th at 369–72.

Judge Tatel authored the opinion. (Mike Frisch)