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Protect Democracy Project, Inc. v. U.S. Department of Health & Human Services

United States District Court, District of Columbia

February 27, 2019

PROTECT DEMOCRACY PROJECT, INC., Plaintiff,
v.
U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE

         Plaintiff Protect Democracy Project, Inc. (“Protect Democracy”) brings this Freedom of Information Act, 5 U.S.C. §552 (“FOIA”) action, seeking to compel the Department of Health and Human Services to release records related to the discontinuation of advertising for healthcare.gov, the federal health insurance marketplace, during the final weeks of the 2016-17 open enrollment period. The case is currently before the Court on the parties' cross-motions for summary judgment. See Dkt. 18; Dkt. 20. The issues raised by those motions have been narrowed over the course of briefing, and the only remaining question before the Court is whether the Department lawfully invoked FOIA Exemption 5-in particular, the deliberative process and attorney-client privileges-to withhold the disputed records or portions of records. For the reasons explained below, the Court concludes that it currently lacks sufficient information to decide this question with respect to the deliberative process privilege, and that, with one exception, in camera review of the disputed material is premature. With respect to the Department's assertion of attorney-client privilege, however, the Court concludes that the Department has met its burden. The Court will, accordingly, GRANT in part and DENY in part both the Department's motion for summary judgment and Protect Democracy's cross-motion.

         I. BACKGROUND

         On February 15, 2017, Protect Democracy submitted a FOIA request to the Department seeking the following records:

(1) Documents between and among employees of the Department of Health and Human Services (“HHS”) and/or the Centers for Medicare and Medicaid Services (“CMS”) “concerning the decision to discontinue advertising for healthcare.gov and/or enrollment in healthcare coverage;”
(2) Documents between the HHS and/or CMS transition teams and the White House concerning the same;
(3) Documents between and among employees of HHS and/or CMS “concerning the effect of the Trump Administration's decision to discontinue the advertising detailed above on enrollment numbers;”
(4) Documents between and among employees of the HHS Office of Public Affairs and/or CMS Offices of Communications “concerning the article published by Politico on January 26, 2017 entitled, ‘Trump White House Abruptly Halts Obamacare Ads;'”
(5) Documents between and among employees of HHS and/or CMS “concerning the number of people who enrolled in healthcare coverage after President Trump took office;” and
(6) Documents between HHS and/or CMS employees and the White House concerning the same.

Dkt. 1 at 2-3 (Compl. ¶ 5). When the Department did not timely respond to the request, see 5 U.S.C. § 552(a)(6)(A)(i), Protect Democracy commenced this action, see Dkt. 1 (Compl.). Subsequently, the Department conducted a search for responsive records and released 274 pages of records to Protect Democracy, redacting certain portions pursuant to FOIA Exemption 5. Dkt. 18-1 at 7. This initial production consisted of 33 pages located in the files of the Office of the Secretary-which the Department refers to as the “HHS production”-and 241 pages of records located in the files of the Centers for Medicare and Medicaid Services (“CMS”)-which the Department refers to as the “CMS production.” See Dkt. 20 at 11-12; Dkt. 25 at 6-7.

         On December 15, 2017, the Department moved for summary judgment, Dkt. 18, and on January 23, 2018, Protect Democracy filed its cross-motion for summary judgment, Dkt. 20. In its cross-motion, Protect Democracy argued both that (1) the Department did not conduct an adequate search, and (2) the Department unlawfully redacted numerous records pursuant to FOIA Exemption 5. Dkt. 20 at 21. With respect to the redacted material, Protect Democracy requested that the Court order the Department to re-produce the relevant records without the improper redactions and to produce a more detailed Vaughn index (or, in the alternative, to submit the unredacted versions of the relevant records to the Court for in camera review). Id. at 26.

         After reviewing Protect Democracy's opposition and cross-motion, the Department requested an extension of time to file its final brief so that it could conduct further searches for potentially responsive records, Dkt. 22, and the Court granted that request, Minute Order (Feb. 21, 2018). The Department then conducted supplemental searches and released an additional 256 pages of responsive records. Dkt. 27 at 12. At the same time, moreover, the Department reconsidered some of its prior withholdings and released unredacted copies of a handful of documents. Id. at 4. This effort had the desired effect of narrowing the scope of the dispute, and Protect Democracy withdrew its challenge to the adequacy of the Department's searches and its challenge with respect to the records that the Department re-released without redactions. Id. Protect Democracy, however, continues to challenge the Department's invocation of Exemption 5, arguing that, with respect to some redactions, it is evident that the Department has misapplied Exemption 5 and that, as to others, the Vaughn index and supporting declarations offer insufficient detail to permit Protect Democracy or the Court to determine whether the redactions were lawful. Id.

         The sole remaining issue before the Court is whether the Department lawfully redacted various records-in both its initial and supplemental productions-pursuant to Exemption 5.

         II. LEGAL STANDARD

         The Freedom of Information Act is premised on the notion that “an informed citizenry [is] vital to the functioning of a democratic society . . . [and] needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). FOIA embodies a “general philosophy of full agency disclosure, ” U.S. Dep't of Def. v. Fed. Labor Relations Auth., 510 U.S. 487, 494 (1994) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 360 (1976)), mandating that an agency disclose records on request unless they fall within one of nine exemptions. See 5 U.S.C. § 552(b). “These exemptions are ‘explicitly made exclusive' and must be ‘narrowly construed.'” Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) (first quoting EPA v. Mink, 410 U.S. 73, 79 (1973), then quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)). The agency bears the burden of showing that a claimed exemption applies. Fed. Open Mkt. Comm. of the Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979); Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008).

         FOIA cases are typically resolved on motions for summary judgment under Federal Rule of Civil Procedure 56. See Beltranena v. U.S. Dep't of State, 821 F.Supp.2d 167, 175 (D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). An agency may meet this burden by submitting “relatively detailed and non-conclusory” affidavits or declarations, SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991), and an index of the information withheld, Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). In a FOIA case, the Court may award summary judgment solely on the basis of information provided by an agency in declarations when those declarations 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); see also Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994).

         A reviewing court should “respect the expertise of an agency” and not “overstep the proper limits of the judicial role in FOIA review.” Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1388 (D.C. Cir. 1979). “[E]xemptions from disclosure, ” however, “must be narrowly construed . . . and conclusory and generalized allegations of exemptions are unacceptable.” Morley v. CIA, 508 F.3d 1108, 1114-15 (D.C. Cir. 2007) (citation and internal quotation marks omitted). The Court reviews the agency's decision de novo. See 5 U.S.C. § 552(a)(4)(B).

         III. ...


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