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Public Employees for Environmental Responsibility v. U.S. Department of Labor

United States District Court, District of Columbia

March 20, 2014



ROBERT L. WILKINS, Circuit Judge.

Plaintiff Public Employees for Environmental Responsibility ("PEER") is a non-profit organization dedicated to research and public education concerning activities and operations of the federal government. (Compl. ¶ 2.) PEER sought documents from the Department of Labor ("DOL") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. §§ 552. Specifically, PEER sought

all documents provided by OSHA to GAO during the calendar year 2010... concerning whistleblower protection programs administered by OSHA, including but not limited to materials sent to GAO in connection with its proposed report on this program.

(Compl. ¶ 16.)[2] After disclosing some records and withholding others under the FOIA Exemption 5 deliberative process privilege, the agency filed a motion for summary judgement arguing that it had fulfilled its FOIA obligations. See 5 U.S.C. § 552(b)(5). PEER opposed the motion and filed its own motion for summary judgment challenging the agency's withholding of a single document.[3]

The Court agreed that the document was properly withheld pursuant to the deliberative process privilege, but the Court ruled that the agency had not met is burden with respect to the issue of segregability. In the prior opinion, the undersigned explained:

It has long been a rule in this Circuit that non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions. In 1974, Congress expressly incorporated that requirement into the FOIA, which now states that "(a)ny reasonably segregable portion of a record shall be provided... after deletion of the portions which are exempt."
Mead Data Cent., Inc. v. United States Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977) (citing 5 U.S.C. § 552(b)). In cases where the agency asserts the deliberative process privilege, purely factual material may not be withheld unless such material is "inextricably intertwined' with the deliberative material." Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 372 (D.C. Cir. 2005) (citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)).
The agency bears the burden of establishing "with reasonable specificity' why the factual material cannot be further segregated. See Armstrong v. Executive Office of the President, 97 F.3d 575, 578 (D.C. Cir. 1996) (citations omitted). While the agency is not required to "commit significant time and resources to the separation of disjointed words, phrases, or even sentences which taken separately or together have minimal or no information content, " the agency cannot discharge its burden by relying on conclusory statements. Mead Data Cent., Inc., 566 F.2d at 261 & n.55.
The Vaughn Index in the present case indicates that the October 2008 meeting notes were withheld in full. (Doc. 18-1, Vaughn Index #1.) According to the DOL briefs and affidavits, the agency performed a "line by line review" of the documents originally requested and the agency disclosed the information that could be released without destroying the integrity of the documents as a whole. (Doc. 10-1, Thompson Decl. ¶ 12; Doc. 10-2, Glassi Decl. ¶¶ 9-10.) Relying on this statement and the Vaughn index description of the meeting notes, the DOL asserts that it has met is burden of establishing disclosure of any material that might have been segregated.
The Court does not agree. DOL's conclusory statements about the segregability of the documents could apply to any withheld document: the statements do not sufficiently explain why or how, for example, factual information about "training" or "resource and case loads" cannot not be disclosed.

(Doc. 19, Mem. Op. at 15-16.) Given this finding, the parties' motions for summary judgment were denied without prejudice and the agency was ordered to produce the document for in camera inspection.[4]

Upon inspection of the document, the Court finds that the bulk of the withheld document "reflect[s the] agency's preliminary positions or ruminations about how to exercise discretion on some policy matter[s.]" Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1435 (D.C. Cir. 1992). Indeed, the document identifies several problems the agency faced, outlines suggested policy changes, and discusses the benefits and disadvantages of the suggested policy changes. Even the "training" and "resource case load" sections of the document included proposed policy changes. Thus, disclosure of the entire document would reveal the "personal opinions" of agency employees and would "likely... stifle honest and frank communication within the agency." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). As such, the agency properly withheld the bulk of the document under the deliberate process privilege exemption.

The Court notes that portions of the document simply contain discussions of current policies. While it might seem that revealing discussions of current policies would not involve disclosure of information that is "deliberative" in nature, such is not the case here. Instead, in this context, disclosing information regarding current policies may provide insight into how the agency contemplates addressing a particular problem. Specifically, knowing that the agency contemplates addressing a particular problem by changing policy X, rather than policy Y, provides insight into the agency's deliberative process. As our Circuit has explained, the deliberative process privilege protects: (1) "the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon"; and (2) "the integrity of the decision-making process itself by confirming that officials would be judged by what they decided, not for matters they considered before making up their minds." Petroleum Info. Corp., 976 F.2d at 1434 n.5. Both of these purposes are furthered by withholding the bulk of the document at issue here because full disclosure would provide insight into what agency officials "considered before making up their minds, " thereby possibly confusing the public. See id.

Only one portion of the document can be segregated and disclosed without impinging upon the deliberative process privilege. On page 12, the second black-bulleted paragraph begins with "Do we track..." and poses a question relating to the tracking of certain complaints. Immediately following that question are three sentences: the first two sentences contain a response to the question and a third sentence contains an opinion about the topic. The question and the two responsive sentences do not provide any insight into whether, or to what extent, the agency is contemplating making any ...

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