Animal Welfare Institute v. National Oceanic and Atmospheric Administration

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.

         This 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.^[1]

         Upon consideration of the pleadings, ^[2] 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.

         I. BACKGROUND

         In its 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.

         Beginning 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.

         In 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.

         On 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.

         In 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.^[3]

         The 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.

         While 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.

         Following 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 ¶¶ 91-98.

         In 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.

         In 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.

         However, 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.

         II. LEGAL STANDARD

         Congress 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).

         When 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).

         III. DISCUSSION

         Plaintiff 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.

         FOIA 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.

         Under 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 at 213.

         Plaintiff 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.

         A. The Creation of “Secret Law”

         First, 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).

         Plaintiff 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.

         But, 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.

         Plaintiff 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 ...