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Public Citizen, Inc. v. Office of Management and Budget

November 6, 2007

PUBLIC CITIZEN, INC., PLAINTIFF,
v.
OFFICE OF MANAGEMENT AND BUDGET, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

Plaintiff, Public Citizen, Inc., filed this suit pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 522, against defendant, the United States Office of Management and Budget ("OMB"), requesting that OMB disclose and release various documents related to which agencies are permitted to bypass OMB's legislative and budgetary clearance processes. Presently before the Court are the parties' cross-motions for summary judgment, which have been fully briefed. Upon consideration of these filings, the relevant statutes, and case law, the Court shall grant defendant's [11] motion and deny plaintiff's [13] cross-motion for summary judgment.

I. BACKGROUND

Plaintiff is a national non-profit public interest organization that works to advance the interests of its members and to educate the public in a wide range of consumer protection issues. Compl. ¶ 3. Defendant OMB is an agency of the government of the United States. Id. at ¶ 4. On December 8, 2006, plaintiff submitted a FOIA request to OMB for lists of agencies that are allowed to transmit legislative and/or budgetary materials to Congress without first submitting them to OMB for coordination and clearance. In particular, plaintiff requested

All records listing agencies that may directly submit legislative proposals, reports, or testimony . . . [or] budget-related materials to Congress without receiving OMB clearance; and . . . [a]ll records explaining that agencies or an agency may directly submit legislative or budget-related materials to Congress without receiving OMB clearance or providing statutory authority for agencies or an agency to directly submit legislative or budget-related materials to Congress without receiving OMB clearance.

Id. at ¶ 5. By letter dated January 10, 2007, OMB informed plaintiff that it had located two documents potentially responsive to plaintiff's request and that OMB was withholding those documents based upon FOIA exemptions 2 and 5.*fn1 See Jukes Decl., ¶ 15. In the same letter, OMB enclosed a document that contained a list of statutes that address the direct submission of legislative materials (and the agency concerned), and a list of statutes that address the direct submission of budget materials (and the agency concerned). Compl. ¶ 6.

By letter dated January 18, 2007, plaintiff appealed OMB's withholding of the two documents and the adequacy of OMB's search for records. See Compl. ¶ 7. The defendant's general counsel denied plaintiff's appeal and upheld the decision to withhold the two documents and the cited exemptions. See Compl. ¶ 8.

Plaintiff filed the instant FOIA action on February 28, 2007, seeking, inter alia, an order requiring defendant to make all the requested records available to plaintiff. See Compl. at 3. In connection with the instant action, defendant conducted a subsequent search which resulted in the discovery of twenty additional documents. See Jukes Decl. ¶¶ 17-18. Those twenty documents were withheld based upon FOIA Exemptions 2 and/or 5. See id. at ¶ 18.

Defendant filed a motion for summary judgment on May 14, 2007 (hereinafter, "Defendant's Motion for Summary Judgment"). On June 13, 2007, plaintiff filed its cross-motion for summary judgment and opposition to defendant's motion for summary judgment (hereinafter, "Plaintiff's Cross Motion for Summary Judgment"). On September 7, 2007, defendant filed its opposition to plaintiff's cross-motion for summary judgment and its reply to its own motion for summary judgment (hereinafter, "Defendant's Opposition"). On October 4, 2007, plaintiff filed its reply to its own cross-motion for summary judgment (hereinafter, "Plaintiff's Reply"). The parties' cross-motions are accordingly ripe for disposition. On October 26, 2007, this Court ordered defendants to submit all withheld information for in camera review.

According to the initial index produced by defendant pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (see Vaughn Index, Attach. A to Jukes Decl.) as well as the original declaration by James Jukes, OMB's Assistant Director for Legislative Reference (see Jukes Decl.), all responsive documents to plaintiff's FOIA request were withheld in full pursuant to FOIA Exemptions 2 and 5. During the course of pleadings, defendant released redacted versions of fourteen of the twenty-two documents originally withheld in full. See Letter, dated August 3, 2007, from Assistant U.S. Attorney Alexander D. Shoaibi to Adina Rosenbaum, Ex. 2 to Def.'s Opp'n. According to defendant's amended Vaughn index (see Am. Vaughn Index, Attach. A to Am. Jukes Decl.), the withheld portions are protected from disclosure under the "high 2" aspect of Exemption 2 and Exemption 5. Defendant asserts that it properly applied the FOIA exemptions to all of the withheld information. See Def.'s Mot. for Summ. J.; Def.'s Opp'n.

Plaintiff challenges defendant's application of FOIA Exemptions 2 and 5 to the withheld information.*fn2 Plaintiff further asserts that defendant has not met its burden of demonstrating that the withheld information is not segregable from the rest of the records. See Pl.'s Reply at 19.

II. ANALYSIS

A. Legal Standard

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper when the evidence in the record demonstrates that there are no disputed issues of material fact and that the moving party is entitled to judgment on the undisputed facts as a matter of law. FED. R. CIV. P. 56(c). A genuine issue of material fact exists if the evidence, when viewed in the light most favorable to the non-moving party, "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a party must provide more than "a scintilla of evidence" in support of its position; the quantum of evidence must be such that a jury could reasonably find for the moving party. Id. at 252. The burden is on the movant to make the initial showing of the absence of a genuine issue of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party is then entitled to ...


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