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Hardy v. Bureau of Alcohol, Tobacco, Firearms, and Explosives

United States District Court, District of Columbia

March 22, 2017

DAVID T. HARDY, Plaintiff,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al ., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge

         The plaintiff, David T. Hardy, a self-described “attorney and internet blogger who disseminates information relating to firearms law issues, ” Compl. ¶ 4, ECF No. 2, initiated this lawsuit against the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), the Department of Justice (“DOJ”) and DOJ's Office of Inspector General (“OIG”), claiming that the agencies violated the Freedom of Information Act (“FOIA”), 5 U.S.C. § 522, by improperly withholding responsive documents he requested regarding ATF's policies on registered handguns and certain documents “given to” OIG “in connection with” an OIG report on ATF's National Firearms Registration and Transfer Record (“NFRTR”). See Compl. ¶¶ 10, 18, 21. Pending before the Court are the defendants' Motion for Summary Judgment, Defs.' Mot. Summ. J. (“Defs.' Mot.”), ECF No. 22, and the plaintiff's cross-motion for summary judgment, Pl.'s Cross-Mot. Summ. J. and Opp'n to Defs.' Mot. (“Pl.'s Opp'n”) at 1, ECF No. 24. For the reasons stated below, both motions are granted in part and denied in part.[1]

         I. BACKGROUND

         On March 18, 2015, OIG received a FOIA request from the plaintiff seeking “any statements, surveys, or reports of interviews given” to OIG “in connection with OIG Report No. I-2007-006, ” titled “The Bureau of Alcohol, Tobacco, Firearms and Explosives' National Firearms Registration and Transfer Record, June 2007, ” (the “NFRTR Report”), which had been prepared by OIG's Evaluation and Inspections Division. Compl., Ex. 3, FOIA Request to OIG, ECF No. 2-3; Defs.' Mot., Ex. 2, Decl. of Deborah M. Waller (“Waller Decl.”) ¶ 3, ECF No. 22-2, and Ex. 4, NFRTR Report, ECF No. 22-4.[2] The report gathered information about the NFRTR (“NFRTR”), an electronic database that contains records on almost two million weapons regulated by the National Firearms Act (“NFA”). NFRTR Report at 2. OIG examined ATF's “effectiveness in maintaining the records of registrations and transfers of NFA weapons in the NFRTR . . . in response to requests from members of Congress who had received letters from citizens expressing concern about the accuracy and completeness of the NFRTR.” Id. at 3. OIG's review included interviews, data analyses and document reviews, an electronic survey, a site visit to an NFA Branch, which is responsible for maintaining the NFRTR, and a demonstration of the NFRTR database. Id. at 24-26.

         According to both parties, the requested records at issue fall into one of three categories: “(1) records of interviews and notes of telephone interviews, (2) survey results, a draft survey, survey data summaries, and survey data analysis, and (3) miscellaneous work papers, including indexes of materials and interviews; and summaries of a document and emails that were reviewed.” Defs.' Mot., Ex. 3, Decl. of Nina S. Pelletier (“Pelletier Decl.”) ¶ 5, ECF No. 22-3;[3]see also Pl.'s Response to Defs.' Stmt. Of Undisputed Material Facts & Pl.'s Stmt. Of Material Facts. Supp. Cross-Mot. Summ J. (“Pl.'s SUMF”) at 3, ECF No. 24.

         In August 2015, OIG prepared a response to the plaintiff's request, advising that OIG deemed the responsive records “reflect[ive] of the deliberative processes of the OIG” and exempt from disclosure pursuant to the “deliberative process” privilege under Exemption 5 of FOIA but, due to a clerical error, this letter was not actually delivered to the plaintiff until after litigation had already commenced. Waller Decl. ¶¶ 5-6; see also 5 U.S.C. § 552(b)(5) (“Exemption 5”) (exempting materials that are “pre-decisional” and “deliberative”).

         In January 2016, after litigation in this matter had begun, OIG reviewed sixty documents related to the NFRTR Report and “determined that portions of the records that were directly quoted in the final report could be segregated and released without compromising the deliberative processes of the OIG.” Waller Decl. ¶ 7. The following month, on February 26, 2016, OIG provided the plaintiff approximately forty pages of highly redacted documents, consisting of records of interviews from which OIG redacted the location, the participants, the inspector, and nearly all of the summaries of discussion during the interview, see Pl.'s Mot., Ex. 1 at 1-21, ECF No. 24-1, along with an index of responsive records withheld under claim of exemption, pursuant to Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973) (the “Vaughn Index”), Waller Decl. ¶ 7; Pl.'s SUMF at 4, ¶¶ 5-6.[4] The Vaughn Index reflects the withholding, in whole or in part, by OIG of sixty responsive documents totaling 511 pages, primarily on the basis of the deliberative process privilege under Exemption 5. See Defs.' Mot., Ex. 6, Vaughn Index, ECF No. 22-2.

         The plaintiff contends that OIG has improperly withheld documents under Exemption 5. Pl.'s Opp'n at 8-16.[5] If application of this exemption is not declared improper, the plaintiff requests that the Court conduct an in camera review of the withheld documents, starting with a sample of 79 pages, to determine whether they were properly withheld. Id. at 16.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the “absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, appropriate inquiry is “whether, on the evidence so viewed, ‘a reasonable jury could return a verdict for the nonmoving party'” (quoting Liberty Lobby, 477 U.S. at 248)). “[T]hese general standards under [R]ule 56 apply with equal force in the FOIA context, ” Washington Post Co. v. U.S. Dep't of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989), and the D.C. Circuit has observed that “‘the vast majority of FOIA cases can be resolved on summary judgment, '” Brayton v. Office of U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         The FOIA was enacted “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, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public's interest in governmental transparency and “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) (alteration adopted) (quoting Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C.Cir.1992)), 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) (quoting Envtl. Prot. Agency v. Mink, 410 U.S. 73, 79 (1973), and FBI v. Abramson, 456 U.S. 615, 630 (1982)); see also Murphy v. Exec. Office for U.S. Attorneys, 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.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976).

         In litigation challenging the sufficiency of “the release of information under the FOIA, ‘the agency has the burden of showing that requested information comes within a FOIA exemption.'” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904 (D.C. Cir. 1999) (quoting Niagra Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)); see also Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (agency invoking exemption bears the burden “to establish that the requested information is exempt”); 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 (“EFF”), 739 F.3d 1, 7 (D.C. Cir. 2014); Assassination Archives & Research Ctr. v. CIA, 334 F.3d 55, 57 (D.C. Cir. 2003). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure, ” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.” Pub. Citizen Health Research Grp.v. FDA, 185 F.3d at 904-05 (alterations in original) (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).

         An agency may carry its burden of properly invoking an exemption by submitting 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 Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (“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.'” (alteration adopted) (quoting Consumer Fed'n of Am. v. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006))); Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that agency affidavit “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)); CREW, 746 F.3d at 1088 (noting that agency's burden is sustained 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 (quoting Larson, 565 F.3d at 862). “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)).

         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), by reviewing 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). As part of this review, district courts also have an “affirmative duty” to consider whether the agency has produced all segregable, non-exempt information, regardless of whether the FOIA plaintiff has raised this issue. Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); see also 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.” (citations omitted)); 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.”).

         III. DISCUSSION

         OIG has withheld, in full or in part, records responsive to all three categories of requested documents, pursuant to the deliberative process privilege under Exemption 5. Pelletier Decl. ¶ 5; Waller Decl. ¶¶ 8-10. The contours of the deliberative process privilege are discussed first, before turning to whether OIG has sustained its burden of showing both that the contested documents are properly withheld under Exemption 5 and that all reasonably segregable portions have been disclosed.

         A. Exemption 5's Deliberative Process Privilege

         Intended to protect “open and frank discussion” among government officials to enhance the quality of agency decisions, Dep't of Interior v. Klamath Water Users Protective Ass'n (“Klamath Water”), 532 U.S. 1, 9 (2001), Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency, ” 5 U.S.C. § 552(b)(5); see also Judicial Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735 (D.C. Cir. 2017) (“Exemption 5 . . . allows agencies to withhold information that would in the context of litigation be protected from discovery by a ‘recognized evidentiary or discovery privilege.'” (alteration adopted) (quoting Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d at 874)). Specifically, the deliberative process privilege, under Exemption 5, “protects ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'” Loving v. U.S. Dep't of Def., 550 F.3d 32, 38 (D.C. Cir. 2008) (quoting Klamath Water, 532 U.S. at 8).

         The deliberative process privilege serves at least three policy purposes. First, the privilege “protects creative debate and candid consideration of alternatives within an agency, and, thereby, improves the quality of agency policy decisions.” Jordan v. U.S. Dep't of Justice, 591 F.2d 753, 772 (D.C. Cir. 1978) (citations omitted). “Second, it protects the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon.” Id. at 772-73 (citations omitted). Third, “it protects 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.'” Id. at 773 (alteration in original) (quoting Grumman Aircraft Eng'g Corp. v. Renegotiation Bd., 482 F.2d 710, 718 (D.C. Cir. 1973), rev'd on other grounds, 421 U.S. 168 (1975)); see also Coastal States Gas Corp. v. Dep't of Energy (“Coastal States”), 617 F.2d 854, 866 (D.C. Cir. 1980).

         “To qualify for the deliberative process privilege, an intra-agency memorandum must be both pre-decisional and deliberative.” Abtew v. U.S. Dep't of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (citing Coastal States, 617 F.2d at 866). “Documents are ‘predecisional' if they are ‘generated before the adoption of an agency policy, ' and ‘deliberative' if they ‘reflect [ ] the give-and-take of the consultative process.'” Judicial Watch, Inc. v. U.S. Dep't of Def., 847 F.3d at 739 (alteration in original) (quoting Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d at 874). As the government concedes, “[a] pre-decisional document [is] not always protected by Exemption 5” because “a document must be both pre-decisional and deliberative for the deliberative process privilege to apply.” Defs.' Reply Supp. Mot. Summ. J. (“Defs.' Reply”) at 8, ECF No. 27 (citing Access Reports v. U.S. Dep't of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991)). The government bears the burden of showing that the withheld document is both predecisional and deliberative. Tax Analysts v. IRS, 117 F.3d 607, 616 (D.C. Cir. 1997).

         “Under the deliberative process privilege, factual information generally must be disclosed, but materials embodying officials' opinions are ordinarily exempt.” Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (citations omitted). Nonetheless, “the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction.” Goodrich Corp. v. U.S. Envtl. Prot. Agency, 593 F.Supp.2d 184, 189 (D.D.C. 2009) (citing Dudman Comm'ns Corp. v. Dep't of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)). Consequently, the D.C. Circuit has taken a functional approach to application of the deliberative process privilege, instructing that “the legitimacy of withholding does not turn on whether the material is purely factual in nature or whether it is already in the public domain, but rather on whether the selection or organization of facts is part of an agency's deliberative process.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (citation omitted); see also Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d at 1435 (“To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment.” (emphasis in original) (citation omitted)); Wolfe v. Dep't of Health & Human Servs., 839 F.2d 768, 774 (D.C. Cir. 1988) (noting that, although “the fact/opinion distinction ‘offers a quick, clear and predictable rule of decision' for most cases, ” courts “must examine the information requested in light of the policies and goals that underlie the deliberative process privilege” (quoting Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977))); Mead Data Central, Inc. v. Dep't of Air Force, 566 F.2d at 256 (noting that “[i]n some circumstances, . . ., the disclosure of even purely factual material may so expose the deliberative process within an agency that it must” enjoy the deliberative process privilege); Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974) (“Exemption 5 was intended to protect not simply deliberative material, but also the deliberative process of agencies.”).

         Under this functional approach, an agency may not rely on the deliberative process privilege unless, if disclosed, the factual information would reveal something about the agency's deliberative process, see Playboy Enterprises, Inc. v. U.S. Dep't of Justice, 677 F.2d 931, 936 (D.C. Cir. 1982), or if the factual information is “inextricably intertwined with the deliberative sections of documents, ” In re Sealed Case, 121 F.3d at 737. See Access Reports v. U.S. Dep't of Justice, 926 F.2d at 1195 (noting that the “‘key question' in identifying ‘deliberative' material” remains “whether disclosure of the information would ‘discourage candid discussion within the agency'” (quoting Dudman Comm'ns Corp. v. Dep't of Air Force, 815 F.2d at 1567-68)). This principle is applied below to OIG's justifications for withholding each of the three categories of documents.

         B. Analysis of OIG's Application of the Deliberative Process Privilege

         The plaintiff challenges OIG's withholding under the deliberative process privilege of 511 pages in sixty responsive records falling into three categories of requested records: “(1) records of interviews and notes of telephone interviews, (2) survey results, a draft survey, survey data summaries, and survey data analysis, and (3) miscellaneous work papers, including indexes of materials and interviews; and summaries of a document and emails that were reviewed.” Pelletier Decl. ¶ 5; Pl.'s SUMF at 3.[6] Notably, the “predecisional” character of these withheld records is not disputed.[7] Consequently, analysis is limited to whether OIG has provided adequate detail in the Vaughn Index and Waller and Pelletier declarations regarding the three categories of documents to show that the “deliberative” prong of the deliberative process privilege is met, justifying withholding of the records.[8] See, e.g., Army Times Publ'g Co. v. Dep't of Air Force, 998 F.2d 1067, 1070 (D.C. Cir. 1993) (addressing only the deliberative prong where the predecisional character of materials was not in dispute).[9]

         OIG appears to suggest a blanket rule covering all the documents, asserting that even if the documents contain purely factual information, they were produced in preparation for a final public report and thus are non-disclosable. See Defs.' Reply at 5 (asserting that even purely factual matter “‘may so expose the deliberative process within an agency' that the material is appropriately privileged.” (quoting Mead Data Central, Inc. v. Dep't of Air Force, 566 F.2d at 256). The “limited exception to the general principle that purely factual material may not be withheld under Exemption 5 may not be read so broadly, however, as to swallow the rule, ” Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., 849 F.Supp.2d 13, 37 (D.D.C. 2012), and “application of the deliberative process privilege is context-specific, ” Edmonds Inst. v. U.S. Dep't of Interior, 460 F.Supp.2d 63, 70 (D.D.C. 2006). Whether the deliberative process privilege applies is necessarily “dependent upon the individual document and the role it plays in the administrative process.” Coastal States, 617 F.2d at 867. Thus, while some “purely factual” documents may be protected by the deliberative process privilege, others may not. Otherwise, “every factual report would be protected as a part of the deliberative process.” Leopold v. CIA, 89 F.Supp.3d 12, 23 (D.D.C. 2015) (quoting Playboy Enterprises, Inc. v. Dep't of Justice, 677 F.2d at 935). As the plaintiff notes, “[u]nder Defendants' theory, all data, factual or not, is exempt under Exemption 5 because all data received would trigger an exercise of judgment on its investigators, and perhaps the survey responders as well. This is an impermissible interpretation of FOIA which destroys the law.” Pl.'s Reply Def.'s Opp'n Cross-Mot. Summ. J. (“Pl.'s Reply”) at 4, ECF No. 29.

         At issue, then, is whether, for each contested document withheld in part or in full, the declarations establish (1) “‘what deliberative process is involved, ” Senate of P.R. v. U.S. Dep't of Justice, 823 F.2d 574, 585-86 (D.C. Cir. 1987) (quoting Coastal States, 617 F.2d at 868), (2) “the role played by the documents in issue in the course of that process, '” id. (quoting Coastal States, 617 F.2d at 868), and (3) “‘the nature of the decisionmaking authority vested in the office or person issuing the disputed document[s], and the positions in the chain of command of the parties to the documents, '” EFF, 826 F.Supp.2d at 168 (D.D.C. 2011) (quoting Arthur Andersen & Co. v. IRS, 679 F.2d 254, 258 (D.C. Cir. 1982)).

         1. Records of Interviews and ...


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