United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
lawsuit arises from a Freedom of Information Act
(“FOIA”) request that Plaintiff Animal Welfare
Institute made to Defendants National Oceanic and Atmospheric
Administration (“NOAA”) and National Marine
Fisheries Service (“NMFS”). Plaintiff requested
all documents from January 1, 2017 to May 1, 2017, regarding
NMFS's determination that the clinical history and
necropsy requirements of the Public Display Permit for an
orca whale, known as “Tilikum, ” were
extinguished by the 1994 amendments to the Marine Mammal
Protection Act (“MMPA”). Defendants responded to
Plaintiff's FOIA request and produced non-exempt
responsive documents. The only issue currently before the
Court is whether or not Defendants are required to produce a
responsive 16-page draft memorandum. Defendants claim that
this draft memorandum is protected under FOIA Exemption 5
which exempts from disclosure “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).
Plaintiff argues that FOIA Exemption 5 is not applicable and
that the draft memorandum is being wrongly withheld. The
parties have filed cross-motions for summary judgment on the
issue of whether or not the draft memorandum falls under
Exemption 5 to FOIA.
consideration of the pleadings,  the relevant legal
authorities, and the record as it currently stands, the Court
and GRANTS Defendants' motion for summary judgment and
DENIES Plaintiff's motion for summary judgment. The Court
concludes that the draft memorandum is exempt from FOIA based
on Exemption 5.
FOIA request, Plaintiff sought to acquire all documents from
January 1, 2017 to May 1, 2017, regarding NMFS's
determination that the necropsy requirements of Public
Display Permit 774, which authorized the import of the orca
whale known as “Tilikum, ” were extinguished by
the 1994 amendments to the MMPA. Defs.' Statement of
Material Facts as to which There is No. Genuine Dispute
(“Defs.' Statement”), ECF No. 20, ¶ 3;
Pl.'s Response to Defs.' Statement of Material Facts
as to which There is No. Genuine Dispute, and Pl.'s
Statement of Additional Material Facts as to which There is
No. Genuine Dispute (“Pl.'s Statement”), ECF
No. 23-2, ¶ 3. This FOIA request was the outcome of a
long series of discussions between Plaintiff and Defendants
as well as other related agencies, including Fish and
Wildlife Services (“FWS”) and the Marine Mammal
Commission (“MMC”), concerning whether or not the
1994 amendments to the MPPA extinguished Public Display
Permit provisions that required permittees to provide the
necropsies for marine mammals to Defendants.
in August 2016, Plaintiff met with Defendants and other
federal agencies to discuss a draft Issue Paper setting forth
Plaintiff's determination that the necropsy and clinical
history requirements of pre-1994 Public Display Permits
remained in effect despite the MMPA amendments. Pl.'s
Statement, ECF No. 23-2, ¶¶ 26-37. The Issue Paper
specifically concluded that the necropsy requirement in the
Public Display Permit for Tilikum was not affected by the
1994 MMPA amendments. Id. at ¶ 28. Plaintiff
decided that it would be appropriate to discuss the Issue
Paper in various meetings with Defendants, FWS, and MMC.
Id. at ¶ 26. Plaintiff met separately with
representatives from NOAA, NMFS, FWS, and MMC. Id.
at ¶¶ 33-36. During these meetings, Plaintiff
shared the findings and conclusions of the Issue Paper with
Defendants and the other agencies. But, in response to a
question from a NOAA attorney, Plaintiff told Defendants that
litigation to enforce the conclusion of the Issue Paper was
not under consideration at that point. Id. at ¶
33; Defs.' Res. To Pl.'s Statement of Additional
Material Facts as to which There is No. Genuine Dispute
(“Defs.' Res.”), ECF No. 30-2, ¶ 33.
November 2016, Plaintiff provided the draft Issue Paper on
the Tilikum Public Display Permit to NOAA and the Department
of the Interior, which includes FWS. The Issue Paper argued
that the clinical history and necropsy provisions in
Tilikum's permit remained in effect despite the 1994
amendments to the MMPA. Pl.'s Statement, ECF No. 23-2,
¶ 38; Defs.' Statement, ECF No. 20, ¶ 5. In
December 2016, Plaintiff met with various FWS officials to
discuss the draft Issue Paper. FWS counsel asked how the
Issue Paper could be enforced in court. Plaintiff responded
that there was no intent for litigation, but, if necessary, a
lawsuit could be filed under the Administrative Procedure
Act. Pl.'s Statement, ECF No. 23-2, ¶ 44; Defs.'
Res., ECF No. 30-2, ¶ 44. Plaintiff continued to meet
with government officials connected to the MMPA and continued
to revise the Issue Paper in response to these conversations.
Pl.'s Statement, ECF No. 23-2, ¶¶ 45-47.
January 6, 2017, Tilikum died at Sea World's Orlando
facility following a long illness. Defs.' Statement, ECF
No. 20, ¶ 4; Pl.'s Statement, ECF No. 23-2, ¶
4. Plaintiff informed NMFS by email that, because of
Tilikum's death, the necropsy and clinical history report
requirements in Tilikum's Public Display Permit were
activated. Pl.'s Statement, ECF No. 23-2, ¶ 49.
Approximately two weeks after Tilikum's death, Plaintiff
requested to meet with Defendants, other federal agencies,
and other animal welfare organizations to discuss
Tilikum's permit requirements. Id. at ¶ 60.
Approximately one week later, an attorney with the Office of
General Counsel for NOAA responded that Defendants were
reviewing the issue internally and would be willing to meet
and discuss the issue following an internal review.
Id. at ¶ 64.
March 2017, NMFS offered to set up a meeting with Plaintiff
and other animal rights groups to discuss the clinical
history and necropsy requirements in Tilikum's Public
Display Permit. Id. at ¶ 72. Prior to the
meeting, Plaintiff asked what position NMFS would be setting
forth. Id. at ¶ 73. In response, NMFS's
Deputy Chief of Permits stated that “NMFS believes the
necropsy provisions of the 1992 permit were effectively
extinguished by the 1994 amendments to the MMPA. …
Thus, we will not be enforcing the necropsy-related
provisions of the permit. The legal analysis supporting this
determination is exempt from disclosure under the attorney-
client privilege, and we will not be discussing it in any
detail at the meeting.” Id. at ¶ 74;
Defs.' Resp., ECF No. 30-2, ¶ 74.
legal analysis referred to by Defendants was contained in a
draft memorandum that was prepared by an attorney in
NOAA's Office of the General Counsel in response to a
request by the Director of the Office of Protected Resources
within NMFS for legal advice and analysis of the arguments
made in Plaintiff's Issue Paper. Declaration of Mark H.
Graff, ECF No. 20-1, ¶ 7. Plaintiff contends that the
memorandum was not a draft but was instead finalized.
However, Defendants repeatedly refer to the memorandum as a
draft, and there is no evidence that the memorandum was ever
finalized. Accordingly, the Court concludes that the
memorandum remained a draft.
NMFS would not share the draft memorandum containing its
legal analysis with Plaintiff, it did share the draft
memorandum with MMC and with FWS. Pl.'s Statement, ECF
No. 23-2, ¶¶ 77-79. Defendants allege that they
regularly discussed legal matters with both MMC and FWS to
ensure a consistent application of the MMPA. Vaughn
Index, ECF No. 20-3, 1, 3. Both MMC and legal counsel for FWS
provided comments on the draft memorandum. Pl.'s
Statement, ECF No. 23-2, ¶¶ 77-79.
various meetings between Plaintiff, Defendants, MMC, and FWS,
in August 2017, Plaintiff sent NMFS a revised Issue Paper.
Id. at ¶ 90. This was the first version of the
Issue Paper provided to NMFS which was not a draft. The Issue
Paper for the first time included the language: “If
NMFS declines to enforce [Tilikum's permit], NMFS has
taken a definitive position construing the meaning of section
5(c) of the 1994 amendments.  As a result, the NMFS legal
interpretation is subject to an APA legal challenge as
arbitrary and capricious. For reasons discussed in this
paper, NMFS has no valid basis for its position, and is very
vulnerable to an APA challenge.” Id.
Defendants continued to refuse to enforce the necropsy
requirements in Tilikum's permit as well as in other
pre-1994 Public Display Permits. Id. at ¶¶
September 2017, Plaintiff filed FOIA requests with
Defendants, FWS, and MMC, asking for documents from each
agency between January 1, 2017, and May 1, 2017, regarding
NMFS's determination that the necropsy requirements in
Tilikum's Public Display Permit were extinguished by the
1994 amendments to the MMPA. Id. at ¶ 99;
Defs.' Res., ECF No. 30-2, ¶ 99. Defendants did not
timely acknowledge the receipt of the FOIA request. Pl.'s
Statement, ECF No. 23-2, ¶ 101; Defs.' Res., ECF No.
30-2, ¶ 101. After failing to receive a response,
Plaintiff filed this lawsuit on January 9, 2018. See
generally Compl., ECF No. 1.
response to Plaintiff's lawsuit, the following day,
Defendants sent a letter to Plaintiff providing 58 files as a
first interim response. These records had been previously
processed and released pursuant to a separate FOIA request.
Pl.'s Statement, ECF No. 23-2, ¶ 107; Defs.'
Res., ECF No. 30-2, ¶ 107. On February 14, 2018, and
February 20, 2018, Defendants made their remaining responses,
releasing a total of 471 records with redactions. Pl.'s
Statement, ECF No. 23-2, ¶¶ 108-09; Defs.'
Res., ECF No. 30-2, ¶¶ 108-09.
based on FOIA Exemption 5, Defendants have refused to release
the draft memorandum that was prepared by the Office of
General Counsel for NOAA, responding to the legal arguments
made in Plaintiff's Issue Paper. Whether or not the draft
memorandum was rightfully withheld under FOIA Exemption 5 is
the issue currently before the Court.
enacted FOIA 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) (internal quotation marks omitted).
Congress remained sensitive to the need to achieve balance
between these objectives and the potential that
“legitimate governmental and private interests could be
harmed by release of certain types of information.”
Fed. Bureau of Investigation v. Abramson, 456 U.S.
615, 621 (1982). To that end, FOIA “requires federal
agencies to make Government records available to the public,
subject to nine exemptions.” Milner v. Dep't of
Navy, 562 U.S. 562, 562 (2011). Ultimately,
“disclosure, not secrecy, is the dominant objective of
the Act.” Rose, 425 U.S. at 361. For this
reason, the “exemptions are explicitly made exclusive,
and must be narrowly construed.” Milner, 562
U.S. at 565 (internal quotation marks and citations omitted).
presented with a motion for summary judgment in this context,
the district court must conduct a “de novo”
review of the record, which requires the court to
“ascertain whether the agency has sustained its burden
of demonstrating the documents requested are ... exempt from
disclosure under the FOIA.” Multi Ag Media LLC v.
Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir.
2008) (internal quotation marks omitted). The burden is on
the agency to justify its response to the plaintiff's
request. 5 U.S.C. § 552(a)(4)(B). “An agency may
sustain its burden by means of affidavits, but only if they
contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into
question by contradictory evidence in the record or by
evidence of agency bad faith.” Multi Ag Media,
515 F.3d at 1227 (internal quotation marks omitted).
“If an agency's affidavit describes the
justifications for withholding the information with specific
detail, demonstrates that the information withheld logically
falls within the claimed exemption, and is not contradicted
by contrary evidence in the record or by evidence of the
agency's bad faith, then summary judgment is warranted on
the basis of the affidavit alone.” Am. Civil
Liberties Union v. U.S. Dep't of Defense, 628 F.3d
612, 619 (D.C. Cir. 2011). “Uncontradicted, plausible
affidavits showing reasonable specificity and a logical
relation to the exemption are likely to prevail.”
Ancient Coin Collectors Guild v. U.S. Dep't of
State, 641 F.3d 504, 509 (D.C. Cir. 2011). Summary
judgment is proper when the pleadings, the discovery
materials on file, and any affidavits or declarations
“show[ ] 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).
does not challenge the adequacy of Defendants' search for
responsive records to Plaintiff's FOIA request. As such,
the sole issue before the Court is whether or not the
withheld draft memorandum falls under FOIA Exemption 5. The
Court has reviewed the parties' supporting Declarations
as well as Defendants' Vaughn Index. Considering
the arguments of the parties, as well as the Court's own
review, the Court concludes that the draft memorandum falls
under FOIA Exemption 5 and was properly withheld.
Exemption 5 protects “inter-agency or intra-agency
memorandums or letters which 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). Over the years, it
has been construed as protecting “those documents, and
only those documents, normally privileged in the civil
discovery context.” Nat'l Labor Relations Bd.
v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975).
It provides protection to “materials which would be
protected under the attorney-client privilege, the attorney
work-product privilege, or the executive ‘deliberative
process' privilege.” Coastal States Gas Corp.
v. Dep't of Energy, 617 F.2d 854, 862 (D.C.
Cir. 1980) (internal citations omitted). In this case,
Defendants rely on two recognized privileges: the
attorney-client privilege and the work-product doctrine.
the federal common law, the proponent bears the burden of
demonstrating the applicability of any asserted privilege.
In re Subpoena Duces Tecum Issued to Commodity Futures
Trading Comm'n WD Energy Servs., Inc., 439 F.3d 740,
750 (D.C. Cir. 2006). To meet that burden, the proponent must
establish the claimed privilege with “reasonable
certainty.” Fed. Trade Comm'n v. TRW,
Inc., 628 F.2d 207, 213 (D.C. Cir. 1980). Specifically,
the proponent must adduce competent evidence in support of
“each of the essential elements necessary to sustain a
claim of privilege.” Alexander v. Fed. Bureau of
Investigation, 192 F.R.D. 42, 45 (D.D.C. 2000). The
proponent “must offer more than just conclusory
statements, generalized assertions, and unsworn averments of
its counsel.” In re Application of Veiga, 746
F.Supp.2d 27, 34 (D.D.C. 2010). Where the proponent fails to
adduce sufficient facts to permit the district court to
conclude with reasonable certainty that the privilege
applies, its burden has not been met. TRW, 628 F.2d
has two arguments as to why FOIA Exemption 5 is not
applicable to the draft memorandum. First, Plaintiff argues
that the draft memorandum provides the rationale underlying
Defendants' final agency action of declining to enforce
the necropsy and clinical history requirements in pre-1994
Public Display Permits. Accordingly, Plaintiff contends that
withholding the draft memorandum would create a body of
“secret law.” Second, Plaintiff argues that, even
if withholding the draft memorandum would not create a body
of secret law, Defendants have not carried their burden of
justifying the use of the attorney-client or work-product
privileges. The Court will address each of Plaintiff's
arguments in turn.
The Creation of “Secret Law”
Plaintiff argues that withholding the draft memorandum
pursuant to FOIA Exemption 5 would create a body of
“secret law.” The United States Court of Appeals
for the District of Columbia Circuit has recognized that
“no private attorney has the power to formulate the law
to be applied to others. Matters are different in the
governmental context when the counsel rendering the legal
opinion in effect is making law.” Tax Analysts v.
Internal Revenue Servs., 117 F.3d 607, 619 (D.C. Cir.
1997). Where a document is “applied routinely as the
government's legal position … FOIA exemption 5 and
the attorney-client privilege may not be used to protect this
… body of agency law from disclosure to the
public.” Id. In determining whether a document
is “working law” requiring disclosure, the Court
must consider “the function and significance of the
document in the agency's decisionmaking process, the
nature of the decisionmaking authority vested in the office
or person issuing the disputed document, and the flow of
documents.” In Defense of Animals v. Nat'l
Inst. of Health, 543 F.Supp.2d 83, 104 (D.D.C. 2008)
(internal quotation marks omitted).
argues that the draft memorandum was “working
law” as it articulated the rationale for
Defendants' new, March 2017 policy that the necropsy
requirement in Tilikum's permit was extinguished by the
1994 MMPA amendments. Plaintiff contends that Defendants
routinely applied the new policy to the deaths of at least
four other orcas, refusing to enforce the necropsy
requirements in their Public Display Permits for the reasons
laid out in the draft memorandum.
Plaintiff's argument rests on a faulty premise. The draft
memorandum did not establish the rationale for a new policy.
Instead, the draft memorandum provided legal support for a
policy that Defendants had adopted in practice since
approximately 1994. According to the Declaration of NOAA
official Mary O'Brien, “[a]fter the 1994
amendments, NMFS no longer asked pre-1994 permittees for
necropsy reports. The 1994 amendments … specified the
limited information facilities had to provide for each of
their animals. When an animal dies, the facility must only
notify NMFS of the date and cause … of death.”
Declaration of Mary O'Brien, ECF No. 30, 1. Ms.
O'Brien went on to explain that, while some smaller
facilities continued to attach necropsy reports to their
date/cause of death reports after 1994, NMFS did not request
the necropsy reports, look at the reports, or enter the
information contained in the reports into any sort of
electronic database. Id.
counters that Ms. O'Brien's Declaration fails to
establish that Defendants had a policy of not requiring the
submission of necropsy reports following the 1994 MMPA
amendments. Instead, Plaintiff argues that, at most, Ms.
O'Brien's Declaration shows that Defendants had no
policy on the applicability of necropsy permit provisions
prior to March 2017. But, the Public Display Permits issued
prior to 1994 contained provisions requiring permit
holders to submit necropsy and clinical history reports to
NMFS. Pl.'s Statement, ECF No. 23-2, ¶ 25. If the
Public Display Permits had merely allowed NMFS the discretion
to request a necropsy report, then Plaintiff's argument
that Defendants had no policy on the necropsy permit
provisions may have been more persuasive. Instead, the Public
Display Permits required the holders to submit the necropsy
reports, and Defendants did not enforce that