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Wright v. Administration For Children and Families

United States District Court, District of Columbia

October 11, 2016

CHRIS WRIGHT, Plaintiff,
v.
ADMINISTRATION FOR CHILDREN AND FAMILIES, (U.S. Department of Health and Human Services), Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE

         The plaintiff, Chris Wright, who is proceeding pro se, brings this lawsuit under the Freedom of Information Act("FOIA"), 5 U.S.C. § 552, against the defendant Administration for Children and Families ("ACF"), which is a division of the U.S. Department of Health and Human Services ("HHS"), challenging the agency's response to his request for "information for use in news stories about unaccompanied alien children[1] . .. and the government's shelter program." Compl. ¶ 3, ECF No. 1; Answer ¶ 4, ECF No. 9. Having already granted partial summary judgment to HHS, pursuant to the parties' Joint Stipulation of Issues to be Briefed, ECF No. 12, see Order (Aug. 3, 2015), ECF No. 13, pending before the Court is HHS's Motion for Summary Judgment ("Def.'s Mot."), ECF No. 16, on the four remaining issues in the case. For the reasons set out below, HHS's motion is granted.

         I. BACKGROUND

         The plaintiff explains that "[t]his case relates to the 'border surge' in the summer of 2014, the high-profile influx of [unaccompanied alien children] which generated voluminous news coverage." Pl's Mem. P. & A. Opp'n Def.'s Mot. Summ. J. ("Pl's Opp'n") at 1, ECF No. 19. In a FOIA request transmitted via email on October 24, 2014, the plaintiff requested records from ACF regarding fifteen categories of information ("Items 1-15") related to "grant award 90ZU0102 in the amount of $190, 707, 505, " made to Baptist Children and Family Services (now BCFS Health and Human Services) ("BCFS") for the provision of residential shelter services to unaccompanied alien children. Compl. Ex. 1 ("Pl's Request") at 1-2, ECF No. 1. Relevant here, one of those fifteen categories of information was described by the plaintiff as "[n]arrative status reports" ("Item 1"). Id. at 1. The plaintiff also requested five broader categories of information ("Items 16-20") "[w]ith respect to BCFS and related entities in general, " regarding (a) "discussions of why these organizations maintain an office, employees, or agents outside of the United States"; (b) "BCFS' grants or assistance to foreign governments, organizations, and individuals"; (c) "BCFS' grants or assistance to governments, organizations and individuals in the United States for Education Training Vouchers [ETVs]"; (d) "BCFS' grants or assistance to governments, organizations and individuals in the United States for ORR allowance grants"; and (e) "discussion of BCFS' failure to properly report lobbying expenditures on its tax forms." Id. at 2.

         On December 10, 2014, an ACF Freedom of Information Officer acted upon the plaintiff's email request by requesting a search for responsive records from the ACF Office of Refugee Resettlement ("ACF-ORR"), which "has jurisdiction over funding the unaccompanied minors residential services program and monitors grantee performance, " and the ACF Office of Grants Management ("ACF-OGM"), which "has jurisdiction over financial management and reporting for all ACF grant programs." Def.'s Mot., Ex. 1, Decl. of Kimberly N. Epstein ("Epstein Decl.") ¶¶ 10-11.

         As of February 12, 2015, when the plaintiff filed the Complaint in this action, HHS had released no documents or information to the plaintiff in response to his request. See generally Compl.; Epstein Decl. ¶ 28. Between March 2, 2015, and September 2, 2015, however, HHS made fourteen separate releases of information in response to the plaintiff's request, totaling many hundreds of pages. Epstein Decl. ¶ 28; Pl's Opp'n at 2-3. These releases included, inter alia, financial reports, Performance Progress Reports ("PPRs"), Situation Reports, monitoring reports, internal memoranda, and emails among various ORR and ACF staff and executives regarding BCFS's grant award90ZU0102. Epstein Decl. ¶ 28.

         HHS construed the plaintiffs request for "narrative status reports" (Item 1), a term HHS does not itself use in categorizing its documents, as a request for PPRs and Situation Reports in connection with BCFS's grant award 90ZU0102. W. ¶¶ 15-16. Employing that construction of the term, HHS released to the plaintiff, inter alia, "all [PPRs] concerning BCFS for grant number 90ZU0102" produced between July 7, 2014, the date the grant was awarded, and December 10, 2014, the date the search for responsive records commenced, Def.'s SMF ¶¶9, 16, as well as all Situation Reports sent by BCFS to ACF-ORR Federal Field Specialists during that time frame, id. ¶¶ 19-22.

         With respect to the plaintiff's requests for more generalized information regarding BCFS' domestic and foreign operations (Items 16-20), "OGM and ORR officials advised [the ACF FOIA Officer] that ACF does not routinely collect or maintain information responsive to [Items 16-20] as they are outside the scope of the relationship with the grantee." Epstein Decl. ¶ 26. Nevertheless, an electronic search of the ACF-OGM and ACF-ORR files containing grantee records and programmatic and financial reports was performed, using key words drawn from the request, i.e., "lobbying, " "ETV, " and "foreign government." Id. ¶¶ 23-24. According to HHS, no responsive documents were found. Id.

         Many of the documents released to the plaintiff were partially redacted pursuant to FOIA Exemptions 4, 5, 6, and 7(C).[2] Id. ¶ 28. In August and September 2015, upon the determination that Exemption 5 did not actually apply, HHS voluntarily released full, non-redacted versions of two documents that were initially released to the plaintiff with redactions under FOIA Exemption 5. Id. The two documents that remain partially redacted under Exemption 5, as listed in the agency's Vaughn Index, consist of emails compiled from the accounts of various agency officials, with redactions on about half, or nineteen, of the thirty-nine total pages. Def.'s Mot. Ex. 3, Vaughn Index, ECF No. 16-3. Larger portions of these documents were redacted when initially released on July 20, 2015 and July 22, 2015, but those were later supplemented with versions containing fewer redactions, released on July 27, 2015 and August 18, 2015, respectively, to "provide consistent disclosure." Epstein Decl. ¶ 28.

         II. LEGAL STANDARD

         Congress enacted the FOIA as a means "to open agency action to the light of public scrutiny, " ACLU v. U.S. Dep't of Justice, 750 F.3d 927, 929 (D.C. Cir. 2014) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)), and "to promote the 'broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request, " DiBacco v. U.S. Army, 195 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). As the Supreme Court has "consistently recognized[, ] ... the basic objective of the Act is disclosure." Chrysler Corp. v. Brown, 441 U.S. 281, 290 (1979). At the same time, the statute represents a "balance [of] the public's interest in governmental transparency against legitimate governmental and private interests [that] could be harmed by release of certain types of information." United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010) (internal quotation marks and citations omitted). Reflecting that balance, the FOIA contains nine exemptions set forth in 5 U.S.C. § 552(b), which "are explicitly made exclusive and must be narrowly construed." Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted) (citing FBI v. Abramson, 456 U.S. 615, 630 (1982)); see Murphy v. Exec. Office for US. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice ("CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). "[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361.

         The agency invoking an exemption to the FOIA has the burden "to establish that the requested information is exempt." Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979); see U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 755 (1989); DiBacco, 795 F.3d at 195; CREW, 746 F.3d at 1088; Elec. Frontier Found, v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014), cert, denied sub nom. Elec. Frontier Found, v. Dep't of Justice, 135 S.Ct. 356 (2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). To carry this burden, an agency must submit sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, [3] or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which the requester's case may be presented to the trial court. See Oglesby v. U.S. Dep't of Army (Oglesby II), 79 F.3d 1172, 1176 (D.C. Cir. 1996) ("The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection .. . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision." (citation omitted)); see also CREW, 746 F.3d at 1088 ("The agency may carry that burden by submitting affidavits that 'describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'" (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). While "an agency's task is not herculean[, ]" it must "describe the justifications for nondisclosure with reasonably specific detail and demonstrate that the information withheld logically falls within the claimed exemption." Murphy, 789 F.3d at 209 (internal quotation marks omitted) (citing Larson, 565 F.3d at 862).

         The FOIA provides federal courts with the power to "enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant, " 5 U.S.C. § 552(a)(4)(B), and "directs district courts to determine de novo whether non-disclosure was permissible, " Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec, 777 F.3d 518, 522 (D.C. Cir. 2015). A district court must review the Vaughn index and any supporting declarations "to verify the validity of each claimed exemption." Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998). Moreover, a district court has an "affirmative duty" to consider whether the agency has produced all segregable, non-exempt information. Elliott v. U.S. Dep't of Agric, 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to court's "affirmative duty to consider the segregability issue sua sponte") (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); see Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) ("[B]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.") (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007)); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) ("[W]e believe that the District Court had an affirmative duty to consider the segregability issue sua sponte ... even if the issue has not been specifically raised by the FOIA plaintiff."); see also 5 U.S.C. § 552(b) ("Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.").

         Summary judgment is appropriate when "there is no genuine dispute as to any material fact." Fed.R.Civ.P. 56. "In FOIA cases, summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith." Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric, 455 F.3d 283, 287 (D.C. Cir. 2006)). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.'" Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862 (quoting Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).

         III. DISCUSSION

         The plaintiff's requests for Item 1 and Items 16-20 are the only requests that remain at issue following this Court's Order granting partial summary judgment to HHS. Order ¶¶ 1-2. For these Items in his original request, the plaintiff contends that summary judgment should be denied because: (1) HHS failed to perform an adequate search for responsive materials; and (2) the deliberative process privilege does not warrant redaction of the documents produced. Pl's Reply Supp. Mot. Opp'n ("Pl's Reply") at 2-4, 7-9, ECF No. 21. The discussion that follows addresses these issues seriatim.

         A. ADEQUACY OF THE AGENCY'S SEARCH

         The plaintiff criticizes the adequacy of the search conducted by ACF for responsive documents for several reasons. First, the plaintiff complains that the search did not include ACF-ORR "[r]egional offices" in Texas and Oklahoma; the "Office of the Secretary"; "former employees"; "consultations with agency personnel concerning the grant and controversies in question"; and "[o]ther record systems." Pl's Opp'n at 3-5. Second, the plaintiff asserts that the methods used to search email accounts, and the "lack of description in the FOIA Officer's Declaration of what is meant by searches of email accounts, " support a finding of inadequacy. Id. at 6-7. Relatedly, the plaintiff argues that the personal communications of relevant personnel are subject to the FOIA and requests sworn declarations from all relevant agency personnel attesting "they did not use personal email, instant messaging, or text accounts to conduct official business" related to his request. Id. at 8-11. Finally, the plaintiff contends that Items 16-20 "extend to all BCFS entities, not just BCFS HHS, and is not limited to the grant otherwise at issue in this case, " but that HHS improperly searched only for records relating to BCFS HHS and grant award 90ZU0102. Id. at 3-7. HHS defends its "search for responsive records [as] both adequate and reasonable, " because "a comprehensive search was performed for documents responsive to [the plaintiffs] request, including of the email boxes of all persons copied on responsive emails." Def.'s Mem. Supp. Def.'s Mot. Summ. J. ("Def.'s Mem") at 7, ECF No. 16.

         1. Applicable ...


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