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Cause of Action Institute v. United States Department of Justice

United States District Court, District of Columbia

September 13, 2018




         Plaintiff Cause of Action Institute caught wind of a congressional committee's instruction to various government agencies to withhold certain records in response to Freedom of Information Act requests. Hoping to uncover the agencies' reactions to this directive, the Institute filed a FOIA request with Defendant United States Department of Justice. Frustrated with DOJ's delayed response, the Institute then initiated this suit. DOJ eventually identified and turned over responsive records, but partially redacted some and refused to provide others, citing the protections afforded by FOIA Exemptions 5 and 6. Both parties now move for summary judgment.

         In so doing, the Institute concedes the adequacy of the Government's search and presents no challenge to its redactions of personal information. But it does take issue with information withheld pursuant to two privileges under Exemption 5's umbrella: the attorney-client privilege and the deliberative-process privilege. After conducting an in camera review of the documents at issue, the Court finds merit in both parties' Motions. It agrees that the claimed privileges do indeed cover a subset of the withheld documents, but concludes that they do not extend quite as far as DOJ claims. Some of the redacted content reveals no confidential communication within the scope of an attorney-client relationship and no deliberation of agency personnel. The Court, therefore, grants in part and denies in part each side's Motion for Summary Judgment.

         I. Background

         Little need be said to tee up the narrow issues at play. In the spring of 2017, Representative Jeb Hensarling, Chairman of the United States House of Representatives Committee on Financial Services, sent a letter to the twelve agencies within his committee's jurisdiction. This letter instructed the agencies that communications with the committee should be treated as “congressional records” rather than “agency records.” See ECF No. 1 (Compl.), Exh. 1 (FOIA Request) at 8-9 (Letter from Chairman Hall to Secretary Mnuchin (Apr. 3, 2017)). The import of this instruction for FOIA requests is significant: while “agency records” must generally be turned over in response to a FOIA request, “congressional records” are often protected from disclosure. Id. For this reason, the letter requested that the agencies “decline to produce any such congressional records in response to a request under the Freedom of Information Act.” Id. at 9.

         The Chairman's letter found its way into the hands of the press, prompting the Institute to file a FOIA request with DOJ to obtain additional information. See ECF No. 16 (Pl. MSJ & Opp.) at 3. Plaintiff sought “[a]ll communications” between two DOJ divisions - the Office of Information Policy (OIP) and the Office of Legislative Affairs (OLA) - and any of the twelve agencies under the Financial Services Committee's purview concerning the Chairman's “directive.” FOIA Request at 2-3 (Letter from Ryan P. Mulvey, CoA Inst., to Laurie Day, DOJ OIP (May 18, 2017)). The request also sought similar communications between DOJ and either the White House or certain members and committees of the House of Representatives. Id. at 3.

         About a month after the Institute filed its FOIA request, DOJ acknowledged receipt. Justice then notified Plaintiff that its search would require more than the “ten additional days provided by the statute.” Compl., Exh. 2 (Letter from James M. Smith, DOJ OIP, to Mulvey (June 22, 2017)) at 2. Because the Institute's request required searching another office, DOJ attested that it fell within the category of “unusual circumstances” under 5 U.S.C.§ 552(a)(6)(B)(i)-(iii). Id. After approximately another month passed, the Institute, having received no further communication, filed this suit.

         DOJ subsequently produced two batches of documents. In the first, it turned over five pages to Plaintiff, which comprised emails between the White House Counsel's Office and OIP. Following the parties' convention, the Court will refer to this batch of records as the “White House-DOJ documents.” Justice made various redactions to these documents per Exemption 5 and also removed personally identifiable information under Exemption 6. See ECF No. 14 (Def. MSJ), Exh. C (White House-DOJ Documents) at 5.

         Defendant later notified the Institute that it had discovered eleven additional pages of responsive records. See Def. MSJ, Exh. D (Letter from Vanessa R. Brinkmann, DOJ OIP, to Mulvey (Jan. 8, 2018)) at 1-2. In a declaration filed with the Court, Justice describes these documents as “email communications, including attachments (one of which is a draft), between [OLC] and OLA and another Executive Branch agency, regarding and responding to a confidential request for DOJ advice from the agency.” Def. MSJ, Attach. 1 (Decl. of Vanessa R. Brinkmann, Sr. Counsel, DOJ OIP), ¶¶ 12, 22. Justice did not, however, disclose which executive-branch agency is included in the correspondence. The Court will refer to this batch of records as the “Agency-DOJ documents.” Claiming the protection of Exemption 5, DOJ withheld the eleven pages in full. See Letter from Brinkmann to Mulvey at 1-2.

         Both parties have now filed Motions for Summary Judgment regarding the propriety of the exemptions invoked by DOJ. To aid in resolving this issue, the Court, on August 3, 2018, ordered the Government to produce the records at issue for in camera inspection. See 8/3/2018 Minute Order. Having now completed this evaluation, the Court is primed to resolve the parties' present dispute.

         II. Legal Standard

         Summary judgment may 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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

         FOIA cases typically and appropriately are decided on motions for summary judgment, and the agency bears the ultimate burden of proof. See Defenders of Wildlife v. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007); see also DOJ v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they describe “the documents and 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.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

         III. Analysis

         Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute thus provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person, ” 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine statutorily created exemptions. Id. § 552(b). So as not to undermine the purposes underlying FOIA, these exemptions “must be narrowly construed.” Rose, 425 U.S. at 361.

         Consistent with this mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See 5 U.S.C. § 552(a)(4)(B); Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754-55 (1989). And “[u]nlike the review of other agency action[, ] . . . the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” Reporters Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). In making this determination, the court “[a]t all times . . . must bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.'” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

         The Institute, to its credit, has done an admirable j ob of narrowing the issues in this case. It does not challenge the adequacy of DOJ's search, nor does it take issue with the redaction of personal information under Exemption 6. See ECF No. 15 (Pl. MSJ & Opp.) at 5. It also concedes that the produced documents are “inter-agency or intra-agency memorandums, ” thus satisfying Exemption 5's threshold requirement. Id. at 7 n.2; see also Am. Immigration Council v. U.S. Dep't of Homeland Sec, 950 F.Supp.2d 221, 238 (D.D.C. 2013). All that is left is the Institute's contention that Exemption 5's privileges do not cover two categories of withholdings: two specific items redacted from the White House-DOJ documents and the eleven pages of the Agency-DOJ documents withheld in full.

         A. Exemption 5

         Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that 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). Withholdings are restricted to “those documents, and only those documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 798-99 (1984). In contrast to disclosures in that context, the needs of a particular plaintiff are irrelevant to a court's determination of whether a particular communication is exempt from disclosure ...

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