UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL PUBLIC RADIO, INC., et al.,
Plaintiffs,
v. Case No. 1:25-cv-02965 (TNM)
UNITED STATES AGENCY FOR
GLOBAL MEDIA, et al.,
Defendants.
MEMORANDUM OPINION
This Freedom of Information Act dispute stems from cutbacks at an agency. An
executive order directed the U.S. Agency for Global Media to reduce operations and to send a
report confirming compliance to the Office of Management and Budget. Shortly after the
report’s submission, National Public Radio and one of its journalists submitted a FOIA request
for it. The agencies released only a redacted version, and the parties now cross-move for
summary judgment over those redactions’ propriety. Because the redactions are justified under
the deliberative process privilege and fulfill FOIA’s other requirements, the Court will grant
summary judgment for the agencies.
I.
Two months into his second term, President Trump issued an executive order on
“Continuing the Reduction of the Federal Bureaucracy.” Exec. Order 14238, 90 Fed. Reg.
13043 (Mar. 14, 2025). That order directed seven “governmental entities,” including the U.S.
Agency for Global Media (“the Agency”), to eliminate their “non-statutory components and
functions” and to “reduce the performance of their statutory functions and associated personnel
to the minimum presence and function required by law.” Id. at 13043. The President also demanded that the head of each targeted entity submit, within seven days of the order’s issuance,
“a report to the Director of the Office of Management and Budget [‘OMB’] confirming full
compliance with th[e] order and explaining which components or functions of the governmental
entity, if any, are statutorily required and to what extent.” Id. The Agency followed the
President’s deadline and submitted a report on March 21, 2025 (“the Report”). Caglioti Decl.,
ECF No. 23-3, ¶ 7.
Ten days later, the Agency received a FOIA request from David Folkenflik, a reporter for
National Public Radio. Id. ¶ 3. That request sought both the Report and “[a]ll attachments to,
and all records, reports or other documents referred to in, or incorporated by reference into, the
Report.” Agency FOIA Request, ECF No. 1-4, at 2. OMB received the same request. OMB
FOIA Request, ECF No. 1-5. After neither the Agency nor OMB granted the request, National
Public Radio and Folkenflik (collectively, “NPR”) sued them here. Compl., ECF No. 1, ¶¶ 7–8.
NPR’s FOIA action seeks “to enjoin [the Agency] and OMB from improperly withholding” the
Report “and accompanying documents.” Id. ¶ 9.
Some months into the lawsuit, the Agency and OMB (collectively, “the Government”)
released “12 pages of documents with some redactions under Exemption 6.” 2d JSR, ECF No.
20, at 2. As for the Report itself, the Government initially decided to withhold it “in full
pursuant to Exemption 5 and the deliberative process privilege.” Caglioti Decl. ¶ 9. It later
revised that determination, “partially grant[ing] the request and releas[ing] the [R]eport in part,
with limited portions withheld pursuant to FOIA Exemption 5.” Id. ¶ 10; see Redacted Report,
ECF No. 23-6.
The parties now cross-move for summary judgment. Their dispute centers solely on the
Government’s assertion of Exemption 5 to redact portions of the Report. See Defs.’ Mot. Summ.
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J., ECF No. 23, at 9–15; Pls.’ Cross-Mot. Summ. J., ECF No. 24-1, at 9–18. Upon the Court’s
order, the Government produced the unredacted Report for in camera review. See Notice of
Compliance, ECF No. 29. The parties’ cross-motions are ripe for this Court’s decision.
II.
“The vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.
Off. of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011) (cleaned up). To obtain
summary judgment, the movant must show that “there is no genuine dispute as to any material
fact” and that he “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court
credits the nonmovant’s factual allegations and draws all reasonable inferences in his favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
“FOIA mandates the disclosure of documents held by a federal agency unless the
documents fall within one of nine enumerated exemptions.” U.S. Fish & Wildlife Serv. v. Sierra
Club, Inc., 592 U.S. 261, 267 (2021) (citing 5 U.S.C. § 552(b)). An agency claiming a FOIA
exemption must establish that it applies to the withheld information. ACLU v. Dep’t of Def., 628
F.3d 612, 619 (D.C. Cir. 2011). That burden remains on the agency “[e]ven when the requester
files a motion for summary judgment.” Pub. Citizen Health Rsch. Grp. v. FDA, 185 F.3d 898,
904 (D.C. Cir. 1999). The agency can carry its burden by submitting a declaration that
“describes the justifications for withholding the information with specific detail, demonstrates
that the information withheld logically falls within the claimed exemption, and is not
contradicted by contrary evidence in the record or by evidence of the agency’s bad faith.”
Shapiro v. DOJ, 893 F.3d 796, 799 (D.C. Cir. 2018) (cleaned up).
A 2016 amendment adds another wrinkle. Even if an exemption applies, the information
must still be released unless the agency shows that disclosure would cause “reasonably
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foreseeable harm to an interest that the exemption protects.” Leopold v. DOJ, 94 F.4th 33, 37
(D.C. Cir. 2024); see 5 U.S.C. § 552(a)(8)(A)(i). “More, an agency must release any segregable
portions of a record that is otherwise exempt, typically by proceeding ‘line-by-line.’” Ctr. for
Immigr. Stud. v. USCIS, 766 F. Supp. 3d 1, 7 (D.D.C. 2025) (quoting Porup v. CIA, 997 F.3d
1224, 1239 (D.C. Cir. 2021)); see 5 U.S.C. § 552(b).
III.
The parties’ dispute here is narrow. They quarrel over one document and one exemption.
The Government justifies its redactions to the Report by invoking Exemption 5 and the
deliberative process privilege. Defs.’ Mot. Summ. J. at 9. NPR counters that “[t]he redacted
portions of the Report are not protected” from disclosure. Pls.’ Cross-Mot. Summ. J. at 9.
Having considered the parties’ submissions and reviewed the unredacted Report in camera, the
Court agrees with the Government that the deliberative process privilege applies. Because the
Government has also shown foreseeable harm and that it released all nonsegregable material, the
Court will grant it summary judgment.
FOIA Exemption 5 allows agencies to withhold “inter-agency or intra-agency
memorandums or letters that 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). This exemption “incorporates the privileges
available to Government agencies in civil litigation,” including “the deliberative process
privilege.” Sierra Club, 592 U.S. at 267.
The deliberative process privilege covers “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150
(1975) (cleaned up). In other words, it shields “documents generated during an agency’s
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deliberations about a policy, as opposed to documents that embody or explain a policy that the
agency adopts.” Sierra Club, 592 U.S. at 263. By “protect[ing] agencies from being forced to
operate in a fishbowl,” the privilege “encourage[s] candor, which improves agency
decisionmaking.” Id. at 267 (cleaned up).
“To fall within the privilege, a document must be predecisional and deliberative.”
Machado Amadis v. Dep’t of State, 971 F.3d 364, 370 (D.C. Cir. 2020). “Documents are
predecisional if they were generated before the agency’s final decision on the matter.” Sierra
Club, 592 U.S. at 268 (cleaned up). “[T]hey are deliberative if they were prepared to help the
agency formulate its position,” id. (cleaned up), or if they “reflect[] the give-and-take of the
consultative process,” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980). “There is considerable overlap between these two prongs because a document cannot be
deliberative unless it is predecisional.” Sierra Club, 592 U.S. at 268.
Against that backdrop, consider the disputed redactions. The Report is a three-page
document. Redacted Report at 2–4. The first one and a half pages are largely unredacted and
describe some of the “aggressive and immediate steps” that the Agency took “to comply with the
Executive Order.” Id. at 2. The document reports, for example, that “[t]ermination letters were
sent to [the Agency’s] grantees” and that the Agency “ordered grant recipients to cease making
any payments to carry out the grant agreement with [the Agency] effective March 15, 2025.” Id.
Under the heading of “Domestic Operations,” the Agency announces that it “placed 994 out of
1,147 federal employees on administrative leave,” “immediately stopped all relevant newsgathering functions,” and “shut down relevant radio transmissions.” Id. at 2–3. Only one
sentence under that heading is redacted; it follows right after the Agency’s statement that it
“began [its] formal engagement with [the] Office of Personnel Management to allow for
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expeditious Reduction in Force.” Id. at 2. The Agency’s description of “Overseas Operations”
is also unredacted, and it details how the Agency “shut off radio transmissions” in various
countries. Id. at 3.
The remaining one and a half pages are redacted. Id. at 3–4. They fall into two sections:
one under the partially redacted heading “Proposed . . .” and the other under the heading “Future
State.” Id.
In explaining the redactions, the Government states that “[t]he withheld portions of [the]
[R]eport lacked any immediate force or effect.” Schmitt Decl., ECF No. 23-4, ¶ 12. According
to the Government, the redactions conceal “proposals and recommendations on workforce
restructuring and organizational realignment,” which “were meant to be part of an iterative
review process with OMB and other agencies.” Id. “This iterative process is also evidenced in
[the Agency’s] update to OMB in mid-April 2025 when it emphasized the need to conduct
further review and evaluation in order to develop sustainable long-term workforce solutions that
align with the Administration’s priorities.” Id. As the Government sees it, the Report “reflects a
snapshot in an evolving process and not a final or settled agency action.” Id. And “[t]o the
extent [the] [R]eport contained background information or listed actions already taken in
response to EO 14238,” the Government says that it “released” those parts. Id. ¶ 13.
The Report’s redactions satisfy both prongs of the deliberative process privilege. The
redacted portions are predecisional because “they were generated before the [A]gency’s final
decision on” the operational reductions that it proposed to OMB. See Sierra Club, 592 U.S. at
268 (cleaned up). And the redacted bullets are deliberative because they “reflect[] the give-andtake of the consultative process” between the Agency and OMB. See Coastal States Gas Corp.,
617 F.2d at 866; see also, e.g., James Madison Project v. DOJ, 436 F. Supp. 3d 195, 204
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(D.D.C. 2020) (holding that privilege applied to “crime reports from the CIA to DOJ, which
contain[ed] the CIA’s position and recommendation with respect to a possible criminal
investigation or prosecution”). That finding is bolstered by the Court’s in camera review of the
unredacted Report. See Hooker v. HHS, 887 F. Supp. 2d 40, 58 (D.D.C. 2012), aff’d, No. 13-5280, 2014 WL 3014213 (D.C. Cir. May 13, 2014). Unlike the unredacted portions, which
describe actions taken, the redactions discuss future options and explicitly envision further
deliberation before execution.
Resisting that conclusion, NPR contends that the Report “merely documents [the]
[A]gency’s compliance with a presidential directive.” Pls.’ Cross-Mot. Summ. J. at 5. NPR
parses the executive order, which in its reading required the Agency “to confirm ‘full
compliance’ with it—not to advise on what policy should be.” Id. at 10. It points out that the
Agency “had already placed over 1,000 journalists and staff on administrative leave, terminated
hundreds of contractors, and canceled all grants” before the Report’s submission. Id. The flaw
in NPR’s argument is that those actions are already unredacted. See Redacted Report at 2–3.
NPR fails to show how the executive order’s requirement that the Report confirm compliance
contradicts the Government’s statements that the Report also makes forward-looking proposals.
In other words, the Report’s partial redactions already distinguish between completed actions
that must be released and proposed actions that may be withheld. NPR does not persuade the
Court to redraw that line.
Taking a different tack, NPR asserts that “[e]ven if portions of the Report were
predecisional when first drafted, the Report has since lost whatever deliberative process
protection it may have once enjoyed.” Pls.’ Cross-Mot. Summ. J. at 13. As evidence, NPR
points to deposition testimony in another case from Kari Lake, the Agency’s senior advisor, who
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stated that “the document reflected a ‘recommendation guideline so that we can go forward and
effectuate the continuing reduction of the federal bureaucracy executive order.’” Id. at 14
(quoting Lake Depo. Tr., ECF No. 24-3, at 151:19–22). NPR also gestures toward a June 2025
Congressional Notification that “described the same statutory minimum plan in granular detail.”
Id. (citing Congressional Notification, ECF No. 24-7). According to NPR, this evidence of later
adoption wholly strips the Report of its predecisional and deliberative status. Id. at 14–15.
That argument falls short. To be sure, “even if [a] document is predecisional at the time
it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position
on an issue or used by the agency in its dealings with the public.” Coastal States, 617 F.2d at
866. But “[t]o adopt a deliberative document, it is not enough for an agency to make vague or
equivocal statements implying that a position presented in a deliberative document has merit;
instead, the agency must make an express choice to use a deliberative document as a source of
agency guidance.” Jud. Watch, Inc. v. Dep’t of Def., 847 F.3d 735, 739 (D.C. Cir. 2017)
(cleaned up). Even the agency’s “carr[ying] out the recommended decision” does not
automatically mean “that the [document] accurately reflected the decisionmaker’s thinking.”
Afshar v. Dep’t of State, 702 F.2d 1125, 1143 n.22 (D.C. Cir. 1983). “Instead, there must be
concrete evidence that the policymaker relied on a document’s analysis and incorporated it by
reference into his final decision.” Ctr. for Immigr. Stud., 766 F. Supp. 3d at 9.
NPR’s evidence does not cut the mustard. Neither Lake’s deposition testimony nor the
Congressional Notification shows that the Agency carried out the Report’s redacted proposals,
let alone that the Agency expressly adopted the Report’s recommendations. Indeed, both sources
reaffirm the evolving character of the Agency’s decisionmaking. In another exchange during the
deposition, Lake agreed that she “underst[ood] that after [the Report] was issued, someone had to
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evaluate it and decide whether to accept or reject the recommendation.” Lake Depo. Tr. at
152:11–19. More than two months after the Report’s submission, meanwhile, the Congressional
Notification stated that “the plan to effectuate the President’s Executive Order [wa]s still
developing.” Congressional Notification at 1. All told, NPR fails to show that the Report’s
redacted portions lost their predecisional and deliberative character. See Shapiro, 893 F.3d
at 799. The Court holds that the deliberative process privilege applies.
Next take foreseeable harm. On this front, the Government explains that “[d]isclosure of
the proposals and plans contained in [the] [R]eport . . . would not only reveal the [A]gency’s
internal prioritization and preliminary recommendations, but also how and why the [A]gency
weighed competing options.” Schmitt Decl. ¶ 14. It would also hamper OMB’s “deliberative
process” by “chill[ing] frank and honest dialogue.” Id. According to the Government, “[t]his
harm is especially acute here because successful implementation of the [executive order]
depends in large part on OMB ensuring that agencies align their actions and policies with
Administration priorities rather than operating in isolation.” Id. Those concerns are
compounded by the fact that certain of the redacted recommendations “could be publicly
unpopular” given that the Agency “oversees a number of well-known public service media
networks, such as Voice of America and Radio Free Europe/Radio Liberty, and its [R]eport
contains short- and long-term proposals concerning the future of these networks.” Id. ¶ 15.
The Government successfully “provide[s] a focused and concrete demonstration of why
disclosure of the particular type of material at issue will, in the specific context of the agency
action at issue, actually impede the interests protected by a FOIA exemption.” See Leopold, 94
F.4th at 37 (cleaned up). The harm it describes is specific to the Report’s redactions and invokes
the very interests that the deliberative process privilege promotes. See Sierra Club, 592 U.S. at
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267 (recognizing the privilege’s function in “protect[ing] agencies from being forced to operate
in a fishbowl” and “encourag[ing] candor, which improves agency decisionmaking” (cleaned
up)); see also Ctr. for Immigr. Stud., 766 F. Supp. 3d at 12 (holding that the agency’s “rationale
f[ell] squarely within the interests the exemption was designed to protect: frank communication
within the agency without fear of public reprisal”).
That still leaves segregability. The Government attests that it “conducted a line-by-line
review of [the] [R]eport to assess whether any reasonably segregable, non-exempt information
can be released,” “evaluat[ing] each bulleted point on every line to determine whether factual
material could be meaningfully separated from deliberative content.” Schmitt Decl. ¶ 17. Based
on this review, the Government “concluded that there is no additional information that could be
segregated and released without causing foreseeable harm.” Id.
That declaration suffices. “When an agency conducts such a line-by-line review, it is
‘entitled to a presumption that [it] complied with [its] obligation’ to release segregable material.”
Ctr. for Immigr. Stud., 766 F. Supp. 3d at 12 (quoting Boyd v. Crim. Div. of U.S. Dep’t of Just.,
475 F.3d 381, 391 (D.C. Cir. 2007)); see also Johnson v. Exec. Off. for U.S. Att’ys, 310 F.3d 771,
776 (D.C. Cir. 2002) (“The combination of the Vaughn index and [agency affidavits] [is]
sufficient to fulfill the agency’s obligation to show with ‘reasonable specificity’ why a document
cannot be further segregated.” (cleaned up)). That presumption is confirmed by the Court’s in
camera review of the unredacted Report, which satisfies the Court that the Government “has
released all reasonably segregable portions of the document.” See Ctr. for Immigr. Stud., 766 F.
Supp. 3d at 12.
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IV.
The Government properly justifies the Report’s redactions under Exemption 5 and the
deliberative process privilege. It also prevails on foreseeable harm and segregability. For these
reasons, the Court will grant summary judgment for the Government. A separate Order will
issue.
Dated: August 21, 2026 TREVOR N. McFADDEN
United States District Judge
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