United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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)).
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.
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 ...