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Case 1:19-cr-00830-AT Document 35 Filed 04/24/20 Page 27 of 34

such, there are no drafts of the Report to disclose, and Thomas’s motion can be denied on that
reason alone. Moreover, Thomas’s request for draft versions of the Report—which do not yet
exist—fails for two additional reasons.

First, drafts of the Inspector General’s Report, which has not been completed and will
likely make recommendations about reforms at the BOP, are protected from disclosure under the
deliberative process privilege, which “covers ‘documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental decisions
and policies are formulated.’” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1, 8 (2001) (quoting N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)). The
privilege is applicable in criminal and civil cases involving the government. See, e.g., United
States v. Fernandez, 231 F.3d 1240, 1246-47 (9th Cir. 2000) (government’s death penalty
evaluation form and prosecution memoranda were shielded from discovery under the deliberative
process privilege); In re Sealed Case, 121 F.3d 729, 737-40 (D.C. Cir. 1997) (indicating that the
privilege applies to grand jury subpoenas); United States v. Frank, 8 F. Supp. 2d 253, 284
(S.D.N.Y. 1998) (internal memoranda covered by privilege). “In order for the privilege to apply,
the agency record at issue must be (1) an inter-agency or intra-agency memorandum or letter; (2)
pre-decisional; and (3) deliberative.” Nat’l Res. Def. Council v. U.S. Envtl. Prot. Agency, 954 F.3d
150, 155 (2d Cir. 2020). “It is well-settled that draft documents, by their very nature, are typically
pre-decisional and deliberative [because] [t]hey reflect only the tentative view of their authors;
views that might be altered or rejected upon further deliberation by their authors or by their
superiors.” Color of Change v. U.S. Dep’t of Homeland Sec., 325 F. Supp. 3d 447, 453 (S.D.N.Y.
2018) (quoting Amnesty Int’l USA v. CIA, 728 F. Supp. 2d 479, 518 (S.D.N.Y. 2010)).

The Inspector General’s Report is both pre-decisional and deliberative. A full draft has not

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