United States District Court, District of Columbia
U.S. DEPARTMENT OF THE TREASURY, Petitioner,
PENSION BENEFIT GUARANTY CORPORATION, Interested Party,
DENNIS BLACK, et al., Respondents.
G. Sullivan United States District Judge.
before the Court is Dennis Black, Charles Cunningham, Ken
Hollis, and the Delphi Salaried Retirees Association's
(collectively, “Respondents”) motion to compel
the production, or alternatively in camera review,
of documents withheld and redacted by the U.S. Department of
Treasury (the “Treasury”) for privilege. Upon
consideration of the motion, response and reply thereto, the
relevant caselaw, and the entire record, and for the reasons
set forth below, the motion is GRANTED in part.
in this miscellaneous action are plaintiffs in Black v.
PBGC, Case No. 09-13616, a civil action pending in the
United States District Court for the Eastern District of
Michigan. Respondents are current and former salaried workers
at Delphi Corporation (“Delphi”), an automotive
supply company. In the civil action, Respondents allege that
in July 2009, the Pension Benefit Guaranty Corporation
(“PBGC”) improperly terminated Delphi's
pension plan for its salaried workers (“Plan”)
via an agreement with Delphi and General Motors. Treasury is
not a party to the civil action.
9, 2015, Respondents filed a motion to compel the production,
or alternatively in camera review, of the documents
Treasury withheld or redacted under four separate claims of
privilege: (1) the deliberative process privilege; (2) the
presidential communications privilege; (3) the
attorney-client privilege; and (4) the work product doctrine.
See generally Mot. Compel, ECF No. 30. Although
Treasury asserted a privilege over 1, 273 documents,
Respondents only challenged 866 documents. Opp., ECF No. 35
order to better evaluate Treasury's claims of privilege,
the Court ordered an in camera review of a random
selection of the withheld and redacted documents. Minute
Entry of June 17, 2016. The Court directed Treasury to submit
hard copies of every tenth document listed in its privilege
log and to clearly identify the redacted material.
review of the random sampling of documents that Treasury
submitted, the Court concluded that it lacked sufficient
information to rule on many of Treasury's privilege
claims and ordered that Treasury submit all of the
documents at issue for in camera inspection. Minute
Entry of July 15, 2016. As part of this exercise, the Court
ordered Treasury to submit an ex parte submission
clearly articulating why each document, or document portion,
was protected by the privilege asserted. Id. For
documents over which Treasury claimed the deliberative
process privilege, the Court specifically directed Treasury
to inform the Court "what deliberative process is
involved, and the role played by the documents in issue in
the course of that process." Id. The Court
warned that “should [it] determine that
[Treasury's] claims of privilege are frivolous, the Court
shall impose significant sanctions, mo[ne]tary and
25, 2016, Treasury produced, in camera, hard copies
of the contested documents, noting that “[i]n preparing
its production, Treasury decided not to continue withholding
certain documents.” See Notice of Production,
ECF No. 40. Of the original 866 contested documents, Treasury
revoked its claims of privilege over nearly 640 documents in
light of the Court's order to produce the contested
documents in camera. Treasury provided no
explanation as to why it suddenly withdrew its privilege
assertions over nearly 75% of the documents it had previously
claimed were privileged. Id. The 221 documents over
which Treasury continues to assert a claim of privilege are
now at issue before the Court.
THE DELIBERATIVE PROCESS PRIVILEGE
has raised the deliberative process privilege as the sole
basis for withholding 120 documents from production. For 63
documents, Treasury has asserted the deliberative process
privilege in conjunction with another
privilege. According to Treasury, these 183
communications are protected from disclosure because they
involve government deliberations regarding the 2009
bankruptcy and restructuring of Chrysler and General Motors.
See Opp., ECF No. 35 at 11-12. For the following
reasons, the Court will order the production of all of the
documents over which Treasury has asserted the deliberative
process privilege in isolation.
The Legal Standard.
deliberative process privilege serves to preserve the
“open and frank discussion” necessary for
effective agency decisionmaking by protecting from disclosure
“documents reflecting advisory opinions,
recommendations, and deliberations that are part of a process
by which Government decisions and policies are
formulated.” Dep't of the Interior v. Klamath
Water Users Prot. Ass'n, 532 U.S. 1, 8-9 (2001). The
privilege “rests on the obvious realization that
officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page
news.” Abtew v. U.S. Dep't of Homeland
Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (quoting
Klamath Water, 532 U.S. at 8-9.). As the U.S. Court
of Appeals for the D.C. Circuit has noted, agency officials
“should be judged by what they decided, not for matters
they considered before making up their minds.”
Russell v. Dep't Air Force, 682 F.2d 1045, 1048
(D.C. Cir. 1982).
within the scope of the deliberative-process privilege,
withheld materials must be both “predecisional”
and “deliberative.” Mapother v. Dep't of
Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993). A
communication is predecisional if “it was generated
before the adoption of an agency policy” and
deliberative if it “reflects the give-and-take of the
consultative process.” Coastal States Gas Corp. v.
Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980).
“Even if the document is predecisional at the time it
is prepared, it can lose that status if it is adopted
formally or informally, as the agency position on an
issue[.]” Id. The deliberative process
privilege is to be construed “as narrowly as consistent
with efficient Government operation.” United States
v. Phillip Morris, 218 F.R.D. 312, 315 (D.D.C. 2003)
(quoting Taxation with Representation Fund v. IRS,
646 F.2d 666, 667 (D.C. Cir. 1981)). To properly invoke the
privilege, the agency must “make a detailed
argument...in support of the privilege” because
“without a specific articulation of the rationale
supporting the privilege, a court cannot rule on whether the
privilege applies.” Ascom Hasler Mailing Sys., Inc.
v. U.S. Postal Serv., 267 F.R.D. 1, 4 (D.D.C. 2010)
(internal quotation marks omitted).
Treasury Has Not Properly Invoked the Deliberative ...