MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
The
Court's [28] Order of August 30, 2017, instructed
Defendants to prepare, among other things, a
Vaughn-type index designed to assist the Court and
the Plaintiff in “assess[ing] Defendants'
anticipated arguments, in the form of a motion pursuant to
Federal Rule of Civil Procedure 12(b)(1), regarding the
availability of mandamus jurisdiction in this action.”
Order, ECF No. 28, at 1. Based on subsequent meet-and-confer
discussions between the parties, Plaintiff repeatedly
expressed concerns about the adequacy of Defendants'
approach to this task. See, e.g., Joint Status
Report, ECF No. 32. After Defendants filed their [33-3]
index, Plaintiff's grievances materialized in a motion to
compel compliance with the Court's order.
The
dissolution of Defendant Presidential Advisory Commission on
Election Integrity (the “Commission”) on January
3, 2018, triggered a series of additional filings. Plaintiff
not only urged the Court to find that adequacy of the index
remains a live issue, but also extended its request for a
revised Vaughn-type index to cover the full life of
the Commission. Defendants reiterated their earlier
insistence that the present index is sufficient to enable the
parties to move to dispositive motion briefing and facilitate
the Court's evaluation of mandamus-type jurisdiction.
Upon consideration of the pleadings, [1] the relevant legal
authorities, and the record as a whole, the Court
DENIES Plaintiff's [35] Motion to Compel
Compliance with the Court's August 30, 2017 Order and for
Additional Appropriate Relief, and DENIES
Plaintiff's [41] Supplemental Request for Relief in
Conjunction with Plaintiff's Motion to Compel Compliance
with the Court's August 30, 2017 Order.
The
core issue at present is whether Plaintiff is entitled to the
disclosure of any documents associated with a now-defunct
commission. Proceedings in a related case may affect
developments here as well. Yesterday, the Court decided that
a former commissioner of the same Commission was entitled to
enforcement of a preliminary injunction-issued before the
Commission's termination-that compelled defendants to
produce certain documents withheld from that commissioner
during the Commission's short life. Dunlap v.
Presidential Advisory Comm'n on Election Integrity,
No. 17-cv-2361 (CKK) (D.D.C. June 27, 2018), ECF No. 52 at
1-3 (citing Cummock v. Gore, 180 F.3d 282 (D.C. Cir.
1999)). The Dunlap defendants-who are the same as
Defendants in this case[2]-must produce those documents by July
18, 2018. Id. at 3. The disclosure in
Dunlap likely would overlap with any disclosure to
which Plaintiff in this case is entitled.
Whatever
the extent of would-be overlap, it is not clear that
Plaintiff could independently obtain the production that it
seeks in this case. Plaintiff is and always has been a member
of the public, rather than a member of the Commission, and so
Plaintiff cannot avail itself of Cummock, at least
not directly. The question is whether Plaintiff currently has
any entitlement to documents under Federal Advisory Committee
Act (“FA C A ”) § 10(b) following the
Commission's termination. Plaintiff offers a string
citation of case law for the proposition that it is
“well settled that the ‘termination' of a
federal advisory committee does not moot claims for committee
records under Section 10(b) of FACA.” Pl.'s Resp.
to Exec. Order at 1. But without further briefing, the Court
is not in a position to ascertain whether the few controlling
authorities cited by Plaintiff necessarily dictate the
disclosure sought here. See Id. (citing, e.g.,
Ass'n of Am. Physicians & Surgeons, Inc. v.
Clinton, 997 F.2d 898, 901 n.1 (D.C. Cir. 1993);
Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1023
(D.C. Cir. 1998)).
Setting
aside the possibility of mootness, the Court is of the view
that further amplifying the Vaughn-type index is not
an efficient method of proceeding in this case, particularly
now that the Commission has been dissolved.[3] Defendants'
current version of the index sets forth a number of documents
that they withheld from public disclosure, together with
their alleged reasons for doing so. ECF No. 33-3 (containing
index); see also 3d Decl. of Andrew J. Kossack, ECF
No. 33-1, ¶ 12 (explaining rationales). An assessment of
Plaintiff's entitlement to documents must be made at the
least under FA C A § 10(b),
which provides that Subject to section 552 of title 5, United
States Code, the records, reports, transcripts, minutes,
appendixes, working papers, drafts, studies, agenda, or other
documents which were made available to or prepared for or by
each advisory committee shall be available for public
inspection and copying at a single location in the offices of
the advisory committee or the agency to which the advisory
committee reports until the advisory committee ceases to
exist.
5 U.S.C. app. 2 § 10(b). Assuming arguendo that
Plaintiff could be entitled to documents in this
post-termination posture (i.e., after “the
advisory committee ceases to exist”), Defendants'
index appears adequate to satisfy the Court's need for
it.[4]
The Court need not consult every one of the hundreds of
entries to find some susceptible to a dispute under Section
10(b) that warrants merits briefing of mandamus-type
jurisdiction.
For
example, among the withheld documents is an “[e]mail
containing agenda for July 19 meeting” sent by Andrew
Kossack, Executive Director and Designated Federal Officer
for the Commission, to Commission members on July 14, 2017.
ECF No. 33-3, at 11 (listing Doc. 140 as allegedly exempt
under rationale “(b)”). Defendants' alleged
rationale for exemption from Section 10(b) and corresponding
non-disclosure is that such document is an
“[a]dministrative email[ ] sent to the entire
Commission (e.g., . . . distributing meeting agendas
. . .), ” and as such was “not used or prepared
for the Commission's substantive work of providing
collective advice to the President.” 3d Decl. of Andrew
J. Kossack, ECF No. 33-1, at 8 (articulating rationale (b)
among list of rationales applicable to other documents).
But it
is not clear on the face of Section 10(b) that an email sent
by a staff member to the entire Commission containing an
“agenda . . . which [was] made available to or prepared
for . . . [an] advisory committee” can be appropriately
withheld. 5 U.S.C. app. 2 § 10(b). After all, the email
delivering the agenda could be construed as one of the
“other documents which were made available to or
prepared for . . . [an] advisory committee.”
Id. The Court previously indicated its
“preliminary view” that its assessments under
Section 10(b) may require an inquiry into the intention with
which Commission documents were created. Order, ECF No. 28,
at 2. M r. Kossack's email to the Commission, containing
an agenda, would seem to be consistent with the Court's
comment that “correspondence may be subject to
disclosure if it includes materials intended for the
committee.” Id. (citing Ctr. for
Biological Diversity v. Tidwell, 239 F.Supp.3d 213
(D.D.C. 2017) (Kollar-Kotelly, J.)). Perhaps Defendants
disagree with this general principle and/or with this example
of a specific application. Either way, this issue has not
been squarely briefed on the merits.
Accordingly,
in an exercise of this Court's discretion to efficiently
handle this case, the Court DENIES WITHOUT
PREJUDICE Plaintiff's [35] Motion to Compel
Compliance with the Court's August 30, 2017 Order and for
Additional Appropriate Relief, and DENIES WITHOUT
PREJUDICE Plaintiff's [41] Supplemental Request
for Relief in Conjunction with Plaintiff's Motion to
Compel Compliance with the Court's August 30, 2017 Order.
Notwithstanding the foregoing analysis, the parties may again
raise the issue of an amplified Vaughn-type index as
needed in the course of the Court's resolution of the
merits.
Defendants
shall file a Motion to Dismiss by JULY 30,
2018. If Defendants want to assert mootness, then
they shall address the cases furnished by Plaintiff and
referenced above. See Pl.'s Resp. to Exec. Order
at 1. In addition to addressing Plaintiff's FACA §
10(b) claim, the scope of any such mootness argument shall
encompass any other claims in Plaintiff's [1] Complaint
that Defendants may argue have been mooted by the
Commission's termination.
If
Defendants want to maintain that every document they have
withheld has been appropriately withheld under FACA §
10(b), and accordingly that the Court lacks subject-matter
jurisdiction over a claim in the nature of mandamus, then
their Motion to Dismiss shall provide authority for their
view and address, as needed, Plaintiff's objections in
prior briefing to the Vaughn-type index.
Plaintiff
shall respond to the Motion to Dismiss by AUGUST 13,
2018. Defendants' reply, if any, ...