United States District Court, District of Columbia
A. HOWELL, CHIEF JUDGE
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 . .. 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.
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
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.
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.
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.
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.
the documents released to the plaintiff were partially
redacted pursuant to FOIA Exemptions 4, 5, 6, and
7(C). 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.
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.
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,  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
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.").
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)).
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.
ADEQUACY OF THE AGENCY'S SEARCH
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.