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This memorandum opinion by U.S. District Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia, dated March 27, 2007, rules in Leslie Kean's FOIA suit against NASA over records about the object said to have crashed in Kecksburg, Pennsylvania on December 9, 1965. The court found NASA had not shown its searches were adequate and noted likely overlooked Cosmos 96 records. It upheld NASA's withholding of two emails under Exemption 5 and ordered the parties to propose new search procedures.
19 The deliberative process privilege “protects the decision- making processes of government agencies and encourages the frank discussion of legal and policy issues by ensuring that agencies are not forced to operate in a fishbowl.” Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (internal quotation marks omitted). The privilege exempts from disclosure “recommendations, draft documents, proposals, suggestions and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Judicial Watch, Inc. v. DOJ, 306 F. Supp. 2d 58, 70 (D.D.C. 2004). To satisfy its burden, the agency must demonstrate that the materials it withheld are both predecisional and deliberative. Mapother, 3 F.3d at 1537. A document is “predecisional if it was generated before the adoption of an agency policy and deliberative if it reflects the give-and-take of the consultative process.” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (internal quotation marks omitted). The Court has reviewed in camera the emails in question. See Order, Feb. 22, 2007. The emails between McConnell and NASA attorney Bierbower concern a letter that McConnell ultimately sent to plaintiff’s counsel. The emails were both deliberative and predecisional with regard to this letter, and therefore are covered by the deliberative process privilege. Case 1:03-cv-02509-EGS Document 45 Filed 03/27/07 Page 19 of 21
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