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Public Citizen, Inc. v. United States Department of Education

United States District Court, District of Columbia

May 22, 2019



          Colleen Kollar-Kotelly, United States District Judge.

         This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiff Public Citizen, Inc. made to Defendant United States Department of Education (“DOE”). Plaintiff requested documents related to an October 2, 2107 event held by the DOE. Initially, the DOE did not respond to Plaintiff's FOIA request; but, following the initiation of this lawsuit, Defendant produced a total of 447 pages of records. The parties negotiated over redactions in and withholdings from those productions, leading to the release of additional documents and the removal of certain redactions. Redactions in 13 pages of documents remain at issue.

         Defendant contends that these redactions are appropriate under FOIA Exemption 5 which protects “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 contends this Exemption does not apply and that the information is being wrongly withheld.

         Currently before the Court are Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as it currently stands, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Cross-Motion for Summary Judgment. The Court concludes that the redactions are exempt from FOIA based on the attorney client privilege and deliberative process privilege grounds of FOIA Exemption 5.

         I. BACKGROUND

         On October 2, 2017, Defendant DOE hosted an event, referred to as “Cutting the Red Tape, ” with various stakeholders in the education field. Pl.'s Statement of Additional Material Facts, ECF No. 18, ¶ 1. The following day, Plaintiff submitted a FOIA request to Defendant requesting the following:

1. All communications between any employee of the immediate Office of the Secretary, Office of Communications & Outreach, or Office of Planning, Evaluation & Policy Development, and any non-Department of Education (ED) entity or individual concerning “breakout sessions, ” “break-out sessions” or “roundtables” scheduled for October 2, 2017, relating to the regulatory agenda, regulatory reform, deregulation, rulemaking, and/or the regulatory process.
2. Any ED policies, procedures, or guidance regarding which individuals or organizations would be invited to the October 2, 2017 break-out sessions.
3. Any policies, procedures, or guidance received from the White House, Office of Management and Budget, and/or other non-ED individual or entity regarding which individuals or organizations should be invited to the October 2, 2017 break-out sessions.

Def.'s Statement of Material Facts, ECF No. 16, ¶ 1. Despite Plaintiff's FOIA request, Defendant failed to provide Plaintiff with an estimated response date. Pl.'s Statement of Additional Material Facts, ECF No. 18, ¶ 16. On May 3, 2018, Plaintiff filed this lawsuit, requesting that the Court order Defendant to release the records responsive to Plaintiff's FOIA request. See generally Compl., ECF No. 1.

         Following the initiation of this lawsuit, Defendant has made a number of productions to Plaintiff. Pl.'s Statement of Additional Material Facts, ECF No. 18, ¶ 17. On July 6, 2018, Defendant produced 19 pages of responsive documents, and on August 6, 2018, Defendant produced an additional 428 responsive pages. Id. Between August and December 2018, the parties negotiated in an attempt to resolve disputes over withholdings and redactions. Id. at ¶ 18. These negotiations led to the production of additional pages of records and to the removal of certain redactions. Id. Plaintiff continues to challenge redactions and withholdings with respect to only 13 pages of records.

         On December 14, 2018, Defendant moved for summary judgment as to these challenged redactions. See generally Def.'s Mot., ECF No. 16. And, one month later, Plaintiff also moved for summary judgment on the challenged redactions. See generally Pl.'s Mot., ECF No. 18. After reviewing the parties' motions, on April 1, 2019, the Court requested that Defendant present unredacted copies of the contested records to the Court for in camera review. See April 1, 2019 Minute Order. And, after reviewing the withheld information in camera, on April 12, 2019, the Court ordered Defendant to explain its reasons for making redactions on two of the documents, OS 314 and OCO 8. See April 12, 2019 Minute Order. The parties' Motions for Summary Judgment are currently before the Court.


         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) (citation 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.” FBI 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 (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. U.S. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation 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 (citation 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) (citations omitted). “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).


         Plaintiff does not challenge the adequacy of Defendant's search for responsive records to Plaintiff's FOIA request. As such, the sole issue before the Court is whether the redactions on 13 of the pages produced to Plaintiff fall under FOIA Exemption 5.[2] The Court has reviewed the documents in camera. Considering the arguments of the parties, as well as the Court's own review of the documents, the Court concludes that the redacted material falls under FOIA Exemption 5 and was rightfully withheld.

         FOIA Exemption 5 protects “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). 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, Defendant relies on two recognized privileges: the attorney-client privilege and the deliberative process privilege.

         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. FBI, 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.

         As to Defendant's Exemption 5 redactions under the attorney client privilege, “[t]he attorney-client privilege protects confidential communications from clients to their attorneys made for the purpose of securing legal advice or services, ” as well as “communications from attorneys to their clients if the communications rest on confidential information obtained from the client.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997) (internal quotation marks omitted). In order to demonstrate the applicability of the privilege, the proponent must establish each of the following essential elements: (1) the holder of the privilege is, or sought to be, a client; (2) the person to whom the communication is made is a member of the bar or his subordinate and, in connection with the communication at issue, is acting in his or her capacity as a lawyer; (3) the communication relates to a fact of which the attorney was informed by his client, outside the presence of strangers, for the purpose of securing legal advice; and (4) the privilege has been claimed and not waived by the client. In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984). A “fundamental prerequisite to the assertion of the privilege” is “confidentiality both at the time of the communication and maintained since.” Coastal States, 617 F.2d at 863; accord Fed. Trade Comm'n v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002).

         “In the governmental context, the ‘client' may be the agency and the attorney may be the agency lawyer.” Tax Analysts, 117 F.3d at 618; accord Coastal States, 617 F.2d at 863 (explaining that attorney-client privilege applies when “the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests, and needs the same assurance of confidentiality so it will not be deterred from full and frank communications with its counselors”). It is well-established, however, that not every communication between an attorney and a client-government or otherwise-is made for the purpose of securing legal advice or services. As this Circuit has explained, “consultation with one admitted to the bar but not in that other person's role as a lawyer is not protected.” In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998) (per curiam) (internal quotation marks omitted). Hence, a government attorney's “advice on political, strategic, or policy issues, valuable as it may [be], would not be shielded from disclosure by the attorney-client privilege.” Id.

         As to Defendant's Exemption 5 redactions under the deliberative process privilege, the exemption protects not only communications that are deliberative in nature, but all communications which, if revealed, would expose to public view the deliberative process of an agency. Russell v. Dep't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). This privilege is intended to protect the decision-making “‘processes of the executive branch in order to safeguard the quality and integrity of governmental decisions.'” A. Michael's Piano, Inc. v. FTC, 18 F.3d 138, 147 (2d Cir. 1994) (quoting Hopkins v. Dep't of House & Urban Dev., 929 F.2d 81, 84 (2d Cir.1991)). Discussions among agency personnel about the relative merits of various positions which may be adopted are just as a much a part of the deliberative process as the actual recommendations and advice which are agreed upon. See Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 257 (D.C. Cir. 1977). Congress created this exception in the FOIA because it believed that forcing agencies to “operate in a fishbowl” would undermine the quality of administrative decision-making by preventing the full and frank exchange of ideas on legal and policy matters. Mead Data, 566 F.2d at 256 (citing to S. Rep. No. 813, 89th Cong., 1st Sess. 9, and H.R .Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966)). Consistent with congressional intent on the subject, this Circuit has construed Exemption 5 “as narrowly as consistent with efficient Government operation.” Wolfe v. Dep't of Health & Human Servs., 839 F.2d 768, 773 (D.C. Cir. 1988) (en banc) (citing Mead Data, 566 F.2d at 256).

         For the deliberative process privilege to apply under Exemption 5, this Court must determine the material to be both pre-decisional and deliberative. Wolfe, 839 F.2d at 774. “A document is predecisional if it was prepared in order to assist an agency decision maker in arriving at his decision, rather than to support a decision already made.” Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (citing Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975)). At its most basic, the courts have held that a document is deliberative in nature if “it reflects the give-and-take of the consultative process.” Coastal States, 617 F.2d at 866. Because Exemption 5's goal is to “prevent injury to the quality of agency decisions, ” the deliberative process privilege can apply only to deliberative processes the results of which are or will be agency policy. See Petroleum Info. Corp., 976 F.2d at 1434. Documents containing advisory opinions and recommendations, or reflecting deliberations comprising the process by which government policy is formulated are protected. Mead Data, 566 F.2d at 256. Exemption 5 protection does not extend to documents that do not “discuss the wisdom or merits of a particular agency policy, or recommend new agency policy.” Coastal States, 617 F .2d at 869.

         The Court will examine each of the documents containing disputed withholdings in turn. The Court will explain why each redaction was proper under either the attorney client privilege or the deliberative process privilege pursuant to FOIA Exemption 5.

         A. Documents OS 8-10

         Defendants have redacted portions of an internal email chain on documents OS 8-10. In support of the redactions, Defendants invoke both the attorney client privilege and the deliberative process privilege as the email chain contains “deliberations and attorney/client consultations regarding potential lists of external invitees to a ...

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