United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE.
American Oversight, submitted a request to the Department of
Health and Human Services (“HHS”) and the Office
of Management and Budget (“OMB”) under the
Freedom of Information Act, 5 U.S.C. § 552, seeking
communications from the agencies to Members of Congress and
Congressional staff about potential administrative actions
related to the implementation of the Affordable Care Act.
Compl. [Dkt. # 1] ¶¶ 10-11. Plaintiff sued the
agencies arguing, among other things, that the agencies
withheld or redacted records without justification, and that
it failed to adequately search for responsive records.
Id. ¶¶ 44-55. The agencies moved for
summary judgment, and plaintiff opposed the motion and filed
its own motion for summary judgment.
the Court finds that the agencies improperly redacted and
mislabeled responsive information as “non-responsive
records, ” and that they improperly invoked Exemption 5
to withhold the agencies' emails with Congress, it will
deny defendants' motion for summary judgment and grant
plaintiff's cross-motion. Defendants are ordered to
produce responsive records consistent with this opinion.
American Oversight “is a nonpartisan, nonprofit . . .
organization committed to the promotion of transparency in
government.” Compl. ¶ 6. On May 4, 2017, it sent
identical FOIA requests to HHS and OMB seeking the following
two categories of records:
1. A copy of any letter or memorandum sent on or about March
23, 2017 to Congressional republicans outlining potential
regulatory actions related to the Affordable Care Act. The
requested record was referenced in an April 4, 2017 letter
from 21 Senators to Secretary Tom Price.
2. Any other communications from [the agencies] to any member
of Congress or congressional staff concerning potential
administrative actions relating to implementation of the
Affordable Care Act.
Ex. A to Compl., HHS FOIA [Dkt. # 1-1]; Ex. B to Compl., OMB
FOIA [Dkt. # 1-2] (collectively, “FOIA
Requests”). The timeframe of the requests was from
March 6, 2017, to the date of the agencies' searches.
Id. at 2. Plaintiff explained in its letters that it
was interested in this information due to stalled legislative
efforts in Congress to “repeal and replace” the
Affordable Health Care Act (“ACA”), and
subsequent reports that the “Trump administration
[planned] to take administrative actions that would affect
the operation of the ACA, ” including the repeal of
regulations. Id. at 1-2.
filed this suit on July 20, 2017, and the agencies began
making rolling productions in November 2017. Status Report
& Proposed Processing Schedule [Dkt. # 6] at 1. By
February 2018, both agencies had completed their productions.
Joint Status Report [Dkt. # 13] at 1.
agencies moved for summary judgment on April 9, 2018,
see Defs.' Mot. for Summ. J. [Dkt. # 14]; Mem.
of P. & A. in Supp. of Defs.' Mot. [Dkt. # 14-1]
(“Defs.' Mem.”), and plaintiff opposed that
motion and filed a cross-motion for summary judgment.
Pl.'s Cross-Mot. at Summ. J. [Dkt. # 16]. Those motions
are fully briefed and ripe for decision. See also
Mem. of P. & A. in Opp. to Pl.'s Mot. For Summ. J.
& in Reply in Supp. of Defs.' Mot. [Dkt. # 20]
(“Defs.' Reply”); Reply in Supp. of Pl.'s
Cross-Mot. for Summ. J. [Dkt. # 22] (“Pl.'s
prevail in a FOIA action, an agency must first demonstrate
that it has made “a good faith effort to conduct a
search for the requested records, using methods which can be
reasonably expected to produce the information
requested.” Oglesby v. U.S. Dep't of Army,
920 F.2d 57, 68 (D.C. Cir. 1990). Second, the agency must
“show that [the] requested material falls within a FOIA
exemption.” Nat'l Ass'n of Home Builders v.
Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). Any
“reasonably segregable” information in a
responsive record must be released, 5 U.S.C. § 552(b),
and “non-exempt portions of a document must be
disclosed unless they are inextricably intertwined with
exempt portions.” Mead Data Cent., Inc. v. U.S.
Dep't of Air Force, 566 F.2d 242, 260 (D.C. Cir.
judgment is appropriate when “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). Most FOIA cases are appropriately
resolved on motions for summary judgment. Brayton v.
Office of the U.S. Trade Representative, 641 F.3d 521,
527 (D.C. Cir. 2011).
FOIA action, the Court may award summary judgment solely on
the information provided in affidavits or declarations that
describe “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 Vaughn v. Rosen, 484 F.2d
820, 826 (D.C. Cir. 1973). Such affidavits or declarations
are accorded “a presumption of good faith, which cannot
be rebutted by ‘purely speculative claims about the
existence and discoverability of other documents.'”
SafeCard Servs., Inc. v. Sec. & Exch.
Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991),
quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d
770, 771 (D.C. Cir. 1981).
The agencies improperly redacted email chains as