Recently, as noted in this blog, a Fifth Circuit panel considered whether the names and email addresses of low-level federal employees who worked on climate change issues must be provided to a Freedom of Information Act (“FOIA”) requester.  The divided panel issued a strong pro-transparency decision, concluding that government employees, even low-level ones, generally lack a privacy interest in their identities and official email accounts.  Texas Public Policy Foundation v. Department of State, 136 F.4th 554, 2025 WL 1287890 (May 5, 2025).  Indeed, the information requested would enable the public to learn the “seniority, backgrounds, and areas of expertise” of employees who contributed to the development of an important public policy, furthering FOIA’s transparency goals.[1] 

However, the Fifth Circuit’s decision may produce unanticipated anti-transparency consequences.  It may enhance the government’s justification for withholding records prepared as a part of developing public policy under FOIA Exemption 5’s deliberative process privilege.  And such potential consequences take on special meaning in the context of the “foreseeable harm standard” of disclosure added to FOIA in 2016, FOIA Improvements Act of 2016, Pub. L. 114-186, §2, 130 Stat. 538, 539 (codified at 5 U.S.C 552(8)(A)(i)(I)). Under that standard, agencies must disclose records falling within FOIA’s exemptions unless their release risk the types of harms the exemption was designed to prevent.  See, OIP Guidance: Applying a Presumption of Openness and the Foreseeable Harm Standard[2]  Ultimately, then, the Fifth Circuit panel’s decision may result in less, not more, transparency.

This post will discuss the Texas Public Policy Foundation decision and explore its potential adverse anti-transparency consequences.

I. Texas Public Policy Foundation v. Department of State

On his first day in office, President Joseph R. Biden, representing the United States, rejoined the 2016 Paris Climate Agreements.  The President committed the United States to “developing its nationally determined contribution” to greenhouse gasses reduction, directing that the process “include analysis and input from relevant executive departments and agencies, as well as appropriate outreach to domestic stakeholders.” Executive Order on Tackling the Climate Crisis at Home and Abroad (e) (Jan. 27, 2021).  Apparently the Special Presidential Envoy for Climate, former Secretary of State John Kerry, and the White House Office of Domestic Climate Policy led the effort. Climate Envoy Kerry and his staff were “[i]ntegrated closely with the State Department’s existing expert staff and personnel.”  TPPF v. Dep’t of State, supra, at 558.  In April 2021 President Biden announced the target: “a 50–52 percent reduction from 2005 levels in economy-wide net greenhouse gas pollution” by 2030.  Id. Almost four years later, Donald Trump, upon retaking the presidency, withdrew the United States from the Paris Accords once again.  Id.

In February 2022, the Texas Public Policy Foundation submitted a FOIA request for “recommendations, determinations, analyses, summaries, and other documents provided or prepared by State Department employees related to the [Department’s] efforts to support the … [n]umber developed for the 2030 emissions target.”  Id. The request expressly sought records produced by both “career staff and political appointees.” Id.

After TPPF initiated litigation, the Department of State began producing the records.  TPPF complained to the Department about its redaction of “the names and agency email addresses of employees” from disclosed emails. The Department explained that it had not redacted such information regarding “policy-making” officials, but, pursuant to [FOIA] Exemption 6, had done so with regard to [‘rank-and-file’] employees,” variously characterized as “career civil service employees,” “mid-level foreign service officers,” and “non-decision-making policy experts.”  Id. It is not clear whether the State Department provided some documents covered by the deliberative process privilege on the grounds that their release would not cause “foreseeable harm.”  The parties cross-moved to resolve their dispute over the Department’s redaction of names and email addresses. Id.

The District Court agreed with the Department’s position. It found that the withheld information qualified as personnel, medical, “or similar files,” focusing on the broad definition of the latter.  Texas Public Policy Foundation  v. Department of State, 2024 WL 1190752, at *6  (W.D. Tex. January 23, 2024).  The Judge agreed with the State Department’s conclusion that “public association of a specific official with comments or edits made with the expectation of anonymity could expose the individual to unwanted and detrimental attention in the conduct of their official duties.” Id. at *7. Moreover, disclosure of low-level employees’ names and email addresses would not advance public knowledge of the Biden Administration’s process for arriving at the United States’ nationally determined contribution to global greenhouse gas emissions reduction. Id.[3] 

The Court of Appeals reversed. It questioned whether names and email addresses on emails between government employees qualified as personnel, medical, “or similar files,” but ultimately concluded it need not decide that issue.  Assuming those withheld names and email addresses qualified as similar files, the State Department could nevertheless not invoke exemption 6 to withhold them.  TPPF v. Dep’t of State, supra, at 559-60.

FOIA, the panel proclaimed, creates a “strong presumption in favor of disclosure.” Id. at 560 (citing U.S. Dep’t of State v.  Ray, 502 U.S. 164, 173(1991)). And exemption 6 more strongly embodied that presumption than any of FOIA’s other exemptions. Id. (citing Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 756 n.9 (1989); Washington Post Co. v. HHS, 690 F.2d 252, 261 (D.C. Cir. 1982)).

TPPF argued that federal employees lack any “legitimate privacy interest in shielding their activities as public servants from public scrutiny.”  Id. at 561.  The Government reprised its argument that “associat[ing] [particular Department employees] with a high-profile and controversial policy” would subject those employees to “unwanted attention.”  Id. at 561.  Such unwanted attention might include “harassing messages,” unwanted contacts from researchers, investigation of “their backgrounds,” media attention, or having their personal information unearthed and disseminated by vengeful individuals (i.e., being doxed).  Id.

The panel majority noted that the Government had not cited any exemption 6 case holding that government employees possessed a significant, cognizable interest in keeping private their work on a “controversial matter.”  Id. at 561.  The Court distinguished three cases finding such a privacy interest. One involved the identifies of FDA employees who participated in regulatory decisions regarding mifepristone, an abortion drug, and thus might become targets of “abortion-related violence.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 153 (D.C. Cir. 2006). A second involved Forest Service employees who had participated in the heavily criticized response to a fatal wildfire that had killed two of their brethren, Forest Serv. Emps. for Env’tal Ethics v. U.S. Forest Serv., 524 F.3d 1021, 1026 (9th Cir. 2008). In yet a third, the Government sought to protect federal employees who possessed unique knowledge of the risks associated with the biolab in which they worked. Civil Beat Law Ctr. for the Pub. Int. v. CDC, 929 F.3d 1079, 1091–92 (9th Cir. 2019).  To the majority those cases merely established that government employees have some level of privacy interest in being protected from proven danger, public association with a fatal and heavily criticized incident, and bad actors seeking highly sensitive information. TPPF v. Dep’t of State, supra, at 562.[4]

The majority held that “public servants generally have no cognizable interest in not being ‘investigated, described in the media, or contacted based on their’ work or otherwise receiving ‘unwanted attention.’”  Id. at 562.  The majority dismissed the Government’s assertions that the unmasked employees would face harassment.  It asserted: “the Department has not shown that the [Biden] administration’s development of a never-binding and now-abandoned emissions reduction target is a matter so controversial as to raise creditable concerns that members of the public will harass and/or dox the State Department employees who participated in that effort.” Id. at 563.

As to email addresses, the panel majority concluded that even low-level employees, generally lack a privacy interest in their identities and their government issued and monitored email accounts.  Id. at 563.

In contrast, the public interest in the disclosure of even low-level employees and their official e-mail addresses was significant.  TPPF argued that such information would enable the public to assess participating employees’ “seniority, backgrounds, affiliations, and expertise” and thus provide insight into “the extent to which the Department [had] relied on [policy] experts, rather than non-subject matter experts,” in formulating its greenhouse gas proposal.  The majority agreed.  The identities of even those employees who lacked policy-making responsibilities would provide “insight into government operations.”  In particular, identifying them “would help the public learn—through open-source research, for example—the seniority, backgrounds, and areas of expertise of those Department employees who worked to commit the United States to the” ambitious greenhouse gas emission reduction goals the Biden Administration had adopted.  Id. at 564 (emphasis added).

Of course, TPPF and the Fifth Circuit panel left out one other subject of investigation ─ bias. Exploring bias might well involve a seemingly more menacing exploration of aspects of the employees’ lives that are more “private” than the employee’s “seniority, backgrounds, and areas of expertise.” Indeed, the exploration of an employee’s biases will likely often involve speculation and imputations as to the employee’s subjective motivations.  No doubt such speculation and imputations would be shared with the public.  (In this context, defamation law would likely provide little protection, as the employees would likely be required to satisfy the New York Times “actual malice” to establish liability.[5])

Unsurprisingly, given its view of the employees’ privacy interest and the countervailing public’s interest in disclosure of their identities, the majority found the Department’s invocation of exemption 6 unwarranted.

The dissenter found Judicial Watch v. FDA (mifepristone), Forest Service Employees for Environmental Ethics (fatal wildfire), and City Beat (biolab) apposite and contested the majority’s attempt to distinguish those precedents.  The dissenter drew a simple rule from the cases  ─ “A government employee has a valid privacy interest if the employee’s involvement in a certain assignment is not public knowledge and disclosure of that involvement would expose the employee to potential harassment or danger.”  Id. at 567 (Haynes, C.J., dissenting).  The dissenter also argued that President Trump’s rescission of the reduction target (and renewed withdrawal from the Paris Climate Accords) had greatly diminished the public’s interest in the names and email addresses of the non-policy-making employees who worked on the Biden Administration’s goals.

II. A Quick Assessment

While my major point in this post regards the unintended consequences of the Fifth Circuit’s decision, a brief assessment of that decision on its own terms seems in order.  Resolving the question of whether employee names can be protected under FOIA’s privacy exemption presents difficult issues.  (The cases on this and similar questions are sufficiently numerous and conflicting[6] that I will not attempt to summarize that caselaw here.)

The existence, degree, and causes of climate change are controversial political issues.  Climate scientists, and even climate journalists, have been subjected to various forms of harassment for years.[7]  Moreover, federal employees in general are currently under attack.[8]  The current Director of the Office of Management and Budge publicly announced in 2023 that he wanted the federal workforce to be “traumatically effected,” so that “when they wake up in the morning,” they should “not want to go to work because they are increasingly viewed as the villains.”[9]  And, for example, employees have allegedly been targeted for dismissal based on attendance of Diversity, Equity, and Inclusion (“DEI”) programs.[10] In our current politically charged and polarized era, it seems naïve to doubt that scientists who worked on the Biden greenhouse gas reduction goals will escape harassment from those outside the government.[11]  Thus, to the extent that withholding information is designed to protect employees from inappropriate harassment, it seems clear that sufficient risk exists to warrant concern.[12]

On the other hand, knowing who is involved in a decision-making process is important to evaluating the decision-making process.  Thus, there is a clear public interest in learning who participated in the deliberations and who was excluded, as well as the background and perspectives of those who surfaced particular ideas and conclusions.  Such information helps reveal “what the government is up to,” DOJ v. Reporters Comm. for Free Press, 489 U.S. 749, 773 (1989), in terms of how the Government has formulated important policies.  While policy makers may make the “final” decisions, subordinates’ analyses and presentation of the underlying facts will be heavily influenced by those decisions.  And, often, as such information increases in importance due to the nature of the issues, so too does the level of controversy surrounding the policy. 

Thus, in some ways the privacy interest in information being withheld mirrors the public interest in its release.  The more important and controversial an issue, the more likely it will lead to harassment (enhancing the privacy interest) and the more important it is for the public to inform itself about and assess not only the decision but also who contributed to it (enhancing the public interest).

This dilemma has arisen more recently with regard to the Department of Governmental Efficiency (“DOGE”).  Legitimate questions have been raised about the qualifications, namely background, skills and knowledge, of the analysts DOGE has sent into agencies to discover inefficiencies.  The backgrounds and experience of DOGE employees are essential elements of a realistic assessment of the credibility of the extraordinary claims of “waste, fraud, and abuse” DOGE and President Trump have lodged against government agencies.  On the other hand, the analysts have been subject to sometimes searing unwanted attention.[13]

As to email addresses, it is true that in theory there should be little entitlement to withholding official email addresses from the public, but the public interest in the email address is also quite low.  In addition, releasing the email addresses will facilitate unwanted harassment and might well distract government employees from doing their jobs, by requiring employees to react to, respond to, or report harassing or threatening emails sent to their official email addresses. Particularly in the context of the release of records laying bare a particular individual’s contribution to the internal debate regarding greenhouse gas emission goals, provision of the employees’ names and their official email addresses does seem to tip the balance toward a privacy interest in avoidance of harassment, and away from the public’s interest in the release of the email address. After all, the employee’s email address reveals little about the individuals’ seniority, backgrounds, areas of expertise, or, for that matter, potential biases.

III. Unintended Consequences

But now let us assess in TPPF v. Dept of State in a broader context, taking into account the existence of the exemption 5 deliberative process privilege.  This broader framing of the issues provides a different perspective on the identification of the participants who helped shape the Biden Administration’s commitments to the reduction of greenhouse gases.

As noted earlier, it is unclear whether the documents the State Department produced in response to plaintiff’s FOIA requests would fall within the deliberative process privilege.[14]  But the deliberative process privilege is broader and more categorical than the privacy exemption.    

The requirements for establishing that a record comes within the deliberative process privilege are relatively modest.  First, the record must be pre-decisional, that is, “antecedent to the adoption of an agency policy.”  Jordan v. DOJ, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc).  Second, the communication must be “deliberative,” it must make “recommendations or expresses opinions on legal or policy matters.”  Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975); Brennan Ctr. for Just. at N.Y. Univ. Sch. of L. v. DOJ, 697 F.3d 184, 194 (2d Cir. 2012).[15]  Documents that meet these criteria are exempt from disclosure, even if their disclosure might be quite informative to the public.  See, U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 270-71 (2021);[16] Nat’l Sec. Archive v. CIA, 752 F.3d 460, 464 (D.C. Cir. 2014) (Kavanaugh, J.).[17] Courts may not “second-guess” Congress’ categorical judgment about the harm to release of pre-decisional information, “including the harm to the candor of present and future agency decisionmaking,” on “a case-by-case basis.”  Id. (citing McKinley v. Board of Governors of the Federal Reserve System, 647 F.3d 331, 339 (D.C.Cir. 2011).

One indicium of whether a record qualifies as “decisional” focuses on precisely the line the State Department sought to draw in TPPF v. Department of State, the document author’s decision-making authority.  If the author lacks decision-making authority, particularly, if the record is one being sent “up” the chain of command, the document will likely to satisfy the “pre-decisional” prong of the deliberative process privilege test. See, e.g., Machado Amadis v. State, 971 F.3d 364, 370 (D.C. Cir. 2020); Coastal States Gas Corp. v. DOE, 617 F.2d 854, 868 (D.C. Cir. 1980); Office of Information Policy, Department of Justice Guide to the Freedom of Information Act, Chapter 5, at 26-27 (March 13, 2023). 

The deliberative process privilege is particularly subject to overuse.  Indeed, in reporting the FOIA Improvements Act, which added “the foreseeable harm” standard, the Senate Committee expressed particular concern regarding the Government’s increasing invocation of Exemption 5 privileges, including the deliberative process privilege.  Sen. Rep. No. 114-4, 114^th Cong., 1^st Sess. at 3 (Feb. 23, 2015).[18] (Arguably in response to National Security Archive v. CIA, Congress included in the FOIA improvements Act of 2016 a 25-year limitation on the validity of the deliberative process privilege, the sole substantive change the Act made to the exemptions themselves.)

Moreover, the deliberative process privilege’s raison d’être is protecting the deliberative process, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975), primarily by ensuring that government employees will provide candid advice and information free from the fear of consequences for providing such contributions, id.  While the prospect of violence, harassment, or unwanted attention from members of the public is relevant to that inquiry, ultimately the likely impact of disclosure on employees and their candor is the focus on the inquiry.  Thus, the quantum of proof of harm in terms of harassing emails or doxing required to sustain an assertion of the deliberative process privilege is likely somewhat less than that the Fifth Circuit found necessary to establish a government employees’ “privacy” interest in their identities being withheld.    

And while the privacy privilege is, in practical effect, largely focused on protecting information about private individuals held by the government, see, Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989),[19] the deliberative process privilege is focused on shielding from the public glare government employees who advise policymakers but do not make final decisions themselves.  Thus several deliberative process privilege precedents have held that the identities of employees involved in policy debates can be withheld.[20]  And unmasking the employees on specific emails would do more than generally identify who participated in a decision, but would reveal the particular contributions made by the identified participants, revelations particularly likely chill future deliberative discussions.

So the deliberative process privilege is intentionally over-inclusive, protecting far more records than might be necessary to ensure candid dialogue on policy among government employees. Application of the foreseeable harm standard enshrined by the FOIA Improvement Act of 2016 helps tailor withholdings to situations in which the government can establish the existence of some real risk to employee candor. 

But this is where the scope of records the Government must produce in response to a FOIA request may well have a particular impact.  If only the points of view aired in government deliberation need be disclosed, without attribution, employees will likely participate with much more candor than in a situation in which points of view asserted in the deliberations are attributed to identified participants, along with their official email addresses. 

Moreover, the government may enjoy a greater comparative advantage over the FOIA requesters in litigating a release’s likely impact on employee candor, than on the issue of the risk of serious harassment were employees’ identities revealed.[21] In some ways it is the perception of the employee that counts, not the actual risk of harassment measured by some objective means.  Presumably, courts will be particularly wary of disregarding policy-maker’s concerns regarding their perception of their subordinate’s willingness to offer candid advice. 

And these inquiries can be quite complex and fact-specific.  For an example of the subtle factors relevant to the former inquiry, consider the advice the DOJ’s Office of Information Policy has given to agencies about application of the “foreseeable harm standards” to records falling within the deliberative process privilege.  FOIA Update: OIP Guidance: Applying the “Forseeable Harm” Standard Under Exemption Five (Jan. 1, 1994);[22] see OIP Guidance: Applying a Presumption of Openness and the Foreseeable Harm Standard.  Notably, the first factor to be considered is the “nature of the decision involved,” and, in particular the “sensitive” or “controversial” nature of the issue. 

The Fifth Circuit’s seemingly pro-transparency opinion removes the option of producing records protected by the deliberative process privilege, but withholding participants’ names and email addresses, at least in all but a few cases where the risk of potential reprisals against participants are compelling.  In doing so, the ruling strengthens the case that the deliberative materials should be withheld altogether.  It does so by enhancing the argument that release of the documents will cause foreseeable harm to employee candor and the quality of the deliberative process as a whole.  In that case, the materials are protected by a more robust, broad, and categorial exemption than the privacy exemption in exemption 6. 

Conclusion

Texas Public Policy Foundation v. Dept. of State is a pro-transparency opinion founded on legal propositions that, as a general matter, are quite sound.  Government employees would seem to have little “privacy” interest in what they do when doing the people’s business.  And the identities of those brought into the policy-making process, and those who are not, as well as their relevant backgrounds, are certainly matters of legitimate public interest.  Thus, it makes some sense to insist upon a strong case of potential inappropriate harassment and abuse to justify withholding the identity of government employees on privacy grounds.  But the harm that arises from disclosure of employee names is not really infringement upon those employee’s individual privacy interests (outside a few cases of real risk of harassments or abuse), but the instrumental interests of the government.  Government decision-making processes will be harmed by releasing the very sort of information, the who of the decision-making process, that the public might indeed find helpful.  The deliberative process privilege resolves this dilemma in favor of secrecy.  Precluding agencies from withholding the identity of participants in decision making procedures under exemption 6 may well lead to resolution of such issues the decidedly less pro-transparency atmosphere of the deliberative process exception.

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[1] A similar issue may arise in the case that has reached the Supreme Court’s emergency docket, involving a FOIA request for the names of Department of Governmental Efficiency (“DOGE”) employees.  In determining whether DOGE is subject to FOIA, a District Judge upheld a discovery request seeking identification of “all current and former employees of DOGE and members of DOGE Teams,” details regarding their employment, who oversees them, and what recurring reports they are required to submit, Application at 7, 28-29, 24a, U.S. Doge Service v. Center for Responsibility and Ethics in Washington, Dkt No. 24a1122 (Sup. Ct.)(filed May 21, 2025) docket sheet accessible here. The case has now been remanded to the D.C. Circuit to trim the permissible scope of discovery.

[2] The guidance document advises: “The foreseeable harm analysis should be made on a case-by-case basis and agencies should individually consider the applicable harms for each record or similar category of records.” 

[3] In its opinion, the District Court also upheld Government redactions under the deliberative process privilege, which TPPF had not contested.  TPPF  v. Department of State, 2024 WL 1190752, supra, at *4-*5. The District Court also resolved issues regarding the adequacy of the search for documents. Id. at *2-*4.

[4] The Court also distinguished a case allowing the Government to withhold the identities of those involved in the FBI’s investigation of Martin Luther King, concluding that the FOIA privacy exemption associated with law enforcement records (the exemption 7 privacy exemption) is more robust than the standard for exemption 6’s standalone privacy exemption.  TPPF v. Dep’t of State, supra, at 562.

[5] See generally, Nat Stern, The Enduring Enigma of Public Official Status in Libel Law, 54 LOY. L.A. L. REV. 1205, 1216-17 (2021)(discussing Courts’ overwhelming inclination to label government employee defamation plaintiffs’ public officials).

[6] E.g., Pinson v. DOJ, 313 F. Supp. 3d 88, 112 (D.D.C. 2018) (noting conflicting decisions issued by the judges within the District of the District of Columbia), Office of Information Policy, United States Department of Justice Guide to the Freedom of Information Act, Exemption 6 Chapter at 18-26 (March 27, 2025)(summarizing much of the caselaw).

[7] Liam Scott, For Some Journalists, Climate Change Coverage Brings Harassment, Threats, Voice of America English news (September 18, 2023);  Scott Waldman, Niina Heikkinen, As Climate Scientists Speak Out, Sexist Attacks Are on the Rise: Female Researchers Have Faced Everything From Personal Insults To Death And Rape Threats, SCIENTIFIC AMERICAN (AUGUST 22, 2018) ; Katherine Bagley, America Is Only Nation Where Climate Scientists Face Organized Harassment, INSIDE CLIMATE NEWS (September 10, 2012) ; Statement of the Board of Directors of the American Association for the Advancement of Science Regarding Personal Attacks on Climate Scientists (June 28, 2011), accessible at, 0629board_statement.pdf .

[8] William Wan and Hannah Natanson, White House Officials Wanted To Put Federal Workers ‘In Trauma.’ It’s Working, WASH. POST (May 20, 2025)(noting, among other things that “The president had called federal employees ‘crooked’ and ‘dishonest’”).

[9] Molly Redden, Andy Kroll, and Nick Surgey, “Put Them in Trauma”: Inside a Key MAGA Leader’s Plans for a New Trump Agenda, PEOPUBLICA (Oct. 28. 2024).

[10] Ray Bogan, Federal Employees Put On Leave For DEI Program Started During 1st Trump Term, Straight Arrow News (Feb. 3, 2025); Bob Moser, Education Department Staffers Suspended for Attending DEI Training, INSIDE HIGHER EDUCATION NEWS (Feb. 4, 2025); Stainnak v. Trump, Appeal of Termination (MSPB), accessible at https://www.acludc.org/en/cases/stainnak-v-trump-challenging-purge-dei-associated-federal-workers-discriminatory-and .

[11] Hadas Gold and Rene Marsh, Elon Musk Publicized The Names Of Government Employees He Wants To Cut. It’s Terrifying Federal Worker, CNN (Nov. 27, 2024)(in November 2024, “in the midst of the flurry of his daily missives, Musk reposted two X posts that revealed the names and titles of people holding four relatively obscure climate-related government positions. Each post has been viewed tens of millions of times, and the individuals named have been subjected to a barrage of negative attention. At least one of the four women named has deleted her social media accounts.”)

[12] The majority viewed the possibility that TPPF or others might use the names and email address[es] to investigate, publicize, or contact the employees as a derivative privacy harm, id. at *7, n.13, namely a harm that does not result from the public exposure of intimate facts about an individual but rather from the manner in which some might use such innocuous information to gain access to the individual.  Though a common view of privacy, particularly in the FOIA context, some prominent privacy scholars advocate a definition of privacy focusing on individual’s protection from unwanted access by others — either physical access or personal information or attention.  In their view, “access” includes “control over access to oneself, both physically and mentally.”  See Beate Roessler and Judith DeCew, “Privacy”, The Stanford Encyclopedia of Philosophy §3.3.2, 3.3.4 (Edward N. Zalta & Uri Nodelman, eds. Winter 2023 Edition)(emphasis added). Under such a normative conception of privacy, concerns about unwanted attention and unwanted contacts fit well within the core concerns of privacy.

[13] Majlie de Puy Kamp, Recording Reveals New Details on Controversial DOGE Employee, CNN (Feb. 22, 2025); Josh Fiallo, Unmasked: Musk’s Secret DOGE Goon Squad—Who Are All Under 26, DAILY BEAST (Feb. 23, 2025)(providing exposes of several DOGE employees) ; C. Douglas Golden, New York Times Accused of ‘Putting the Lives of DOGE Employees at Risk’ with Irresponsible Hit Piece, WESTERN JOURNAL ; The People Carrying Out Musk’s Plans at DOGE, N.Y. TIMES (Updated May 14, 2025)(noting that “[s]everal have deleted their social media accounts after their names appeared in news reports,” the articles provides names, photographs and a brief biographical sketch of 70 individuals working with DOGE);  Ken Bensinger, How Elon Musk and the Right Are Trying to Recast Reporting as ‘Doxxing’ N.Y. TIMES(Feb. 12, 2025).

[14] As noted earlier, the State Department withheld some documents based on the deliberative process privilege, and the District Judge upheld the redactions; indeed, plaintiff did not actually contest the withholdings.

[15] The privilege leaves unprotected “purely factual material” within a deliberative document that is severable from the deliberative context.  EPA v. Mink, 410 U.S. 73, 87-91 (1973).  This fact/opinion test has proven elusive, see Wolfe v. HHS, 839 F.2d 768, 774 (D.C. Cir. 1988) (en banc), but any facts that fall outside the privilege presumably relate to the underlying factual background for the decision, not facts about the deliberative process itself.  In Wolfe v. HHS, the D.C. Circuit held that HHS’s “Regulations Log” used as an internal tracking device, which listed proposed FDA regulatory actions by title, the date on which the proposal was received by HHS, and, if applicable, the date on which HHS sent it on to OMB” did not qualify as “factual” material, and thus remained protected as “deliberative” material.  See, id. at 774 (using as an analogy a memo from an appellate judge to a panel reading simply “Reverse. I will write.”).  Thus, the names and addresses of the specific employees providing advice to decisionmakers are clearly protectible as “deliberative,” even though they can be characterized as matters of “fact,” like the “dates and titles” in HHS v. Wolf.

[16] U.S. Fish & Wildlife involved draft biological opinions provided to agencies by the U. S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) concluding that an agency proposal would jeopardize the environment.  Final reports are rarely issued because agencies almost invariably revise or abandon their plans in response to unfavorable draft biological opinions.  See, Bernard W. Bell, A “Draft of a Draft” or a “Charade:” U.S. Fish & Wildlife Service v. Sierra Club, YALE J. ON REG.: NOTICE & COMMENT (March 10, 2021). Nevertheless, such impactful drafts were held to be protected deliberative materials.  As the Court explained, “[t]o determine whether the privilege applies, we must evaluate not whether the drafts provoked a response from the EPA but whether the [FWS and NMFS] treated them as final,” 592 U.S. at 271.

[17] In National Security Archive, when explaining why a draft agency history of the Bay of Pigs invasion could not be released 50 years after the events in question, and after the agency had abandoned the effort to produce a final report, the Judge Kavanaugh explained:

“the FOIA requester claims that the CIA has identified no concrete harm that would result from release of the draft of Volume V. But as we have said before, “Congress enacted FOIA Exemption 5 … precisely because it determined that disclosure of material that is both predecisional and deliberative does harm an agency’s decisionmaking process.” McKinley v. Board of Governors of the Federal Reserve System, 647 F.3d 331, 339 (D.C. Cir.2011).

Nat’l Sec. Archive v. CIA, supra, 752 F.3d at 464.

[18] The Committee observed:

There is a growing and troubling trend towards relying on [FOIA’s] exemptions to withhold large swaths of Government information, even though no harm would result from disclosure. For example, according to the OpenTheGovernment.org 2013 Secrecy Report, Federal agencies used Exemption 5, which permits nondisclosure of information covered by litigation privileges such as the attorney-client privilege, the attorney work product doctrine, and the deliberative process privilege, more than 79,000 times in 2012–a 41% increase from the previous year.

Sen. Rep. No. 114-4, supra, at 3.

[19] FOIA’s purpose “is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” 

[20] See, e.g., AIDS Healthcare Found. v. Leavitt, 256 F. App’x 954, 957 (9th Cir. 2007) (names of reviewers of grant applications); Brinton v. Dep’t of State, 636 F.2d 600, 604 (D.C. Cir. 1980) (identities of attorneys who provided legal advice to Secretary of State); Pub. Citizen, Inc. v. U.S. Dep’t of Educ., 388 F. Supp. 3d 29, 44 (D.D.C. 2019) (identity of author of emails who was part of a deliberative process); Cofield v. City of LaGrange, 913 F. Supp. 608, 616-17 (D.D.C. 1996) (internal routing notations potentially identifying participants in a deliberative process); Miscavige v. IRS, No. 91-1638, 1993 WL 389808, at *3 (N.D. Ga. June 15, 1992) (signatures of agency employees participating in an examination of church’s tax exempt status), aff’d on other grounds, 2 F.3d 366 (11th Cir. 1993); see generally, DOJ Guide to FOIA, supra, Chapter 5, at 45 & n. 186.

[21] Given the fact that the Government often has information critical to issues in its possession, the judicial reluctance to order discovery in FOIA cases, and the tendency to resolve FOIA cases on the sufficiency of the Government’s affidavits, see Margaret B. Kwoka, The Freedom of Information Act Trial, 61 Amer. U. L. Rev. 217, 246-49, 267-268 (2011), gives the Government a substantial litigation advantage over FOIA requesters.

[22] While the document dates from 1994, the FOIA Improvements Act merely codified the “foreseeable harm” standard announced in the Clinton Administration and resurrected in the Obama Administration.  Sen. Rep. No. 114-4, supra, at 3.