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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