The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiffs Media Research Center ("MRC") and Judicial Watch, Inc. ("JW") have each filed separate actions against the U.S. Department of Justice ("DOJ") and the Office of the Solicitor General of the United States ("OSG") (collectively "DOJ") pursuant to the Freedom of Information Act ("FOIA"). 5 U.S.C. § 552. Plaintiffs seek documents related to involvement that former Solicitor General Elena Kagan ("S.G. Kagan") may have had in drafting or opposing legal challenges to the Patient Protection and Affordable Care Act ("PPACA") signed by President Obama on March 23, 2010. In response to plaintiffs' requests, DOJ produced a number of documents, but redacted others pursuant to various FOIA exemptions, and it also withheld others after determining they were not "agency records" subject to FOIA. Before the Court is defendants' motion for summary judgment and plaintiffs' memoranda in opposition. For the reasons stated herein, the Court will grant summary judgment.
On May 25, 2010, CNSNews.com, a division of MRC, sent a FOIA request to DOJ seeking records of communications to or from S.G. Kagan, and notations of meetings she attended that pertained to three topics: (1) then-pending legislative health-care proposals; (2) legal challenges to the PPACA; and (3) recusal of S.G. Kagan from any particular case due to the possibility that she might be confirmed to a seat on a federal court that subsequently might hear such case. (Compl. ¶ 6.)
In relevant part, MRC requested:
Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which then-pending legislative health-care proposals were discussed";*fn1
Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which [any] legal challenge to the health-care reform bill signed by President Barack Obama was a topic; [and]
Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which the question of whether Solicitor General Elena Kagan ought to recuse herself from involvement in any particular case in her role as solicitor general due to the prospect that it might later come before her were she to be confirmed to a seat on a federal court was discussed.*fn2
In response to this request, DOJ searched the files of individuals at the OSG using the dates of S.G. Kagan's tenure in that position and identified approximately 1,400 pages of potentially responsive materials. (Def.'s Mot. for Summ. J., Ex. 3 ("Hall Decl.") ¶ 14.) DOJ reviewed these documents and found that 115 pages contained at least some responsive material. (Id. ¶ 14.) Of these, DOJ determined that only 86 pages were "agency records" covered by FOIA. (Id. ¶¶ 14-15.)
DOJ released 45 of the 86 responsive pages to MRC. (Id. ¶ 15.) Twenty pages were released in full and 25 pages were released with information redacted pursuant to FOIA Exemptions 2, 5, and 6. (Id. ¶¶ 15, 17-23.) The remaining 41 responsive pages--primarily emails between S.G. Kagan and others-were withheld in full based on DOJ's determination that the documents are not "agency records" and thus not subject to FOIA.*fn3 (Hall Decl. ¶¶ 14(b) & n.2.) DOJ further stated that, if the 41 withheld pages were determined to be agency records, they would be withheld pursuant to FOIA Exemption 5 as records protected by the deliberative process privilege. (Hall Decl. ¶¶ 19-21; Hall Decl., Ex. A ("Vaughn Index") at 11-19.)
On June 9, 2010, plaintiff JW sent a FOIA request to DOJ seeking, in relevant part:
1. All records of communication, briefing materials, and/or legal opinions concerning the constitutionality of the Patient Protection and Affordable Care Act of March 23, 2010;
2. Any and all records of communications between the Office of the Solicitor General and any of the following entities concerning the constitutionality of the ...