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Case 1:19-cr-00830-AT Document35 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 US. 1, 8 (2001) (quoting V.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 a2 DOJ-OGR-00022089