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 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.
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.
before the Court are Defendant's Motion for Summary
Judgment and Plaintiff's Cross-Motion for Summary
Judgment. Upon consideration of the pleadings,  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.
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
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.
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
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.
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).
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.
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. 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.
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.
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.
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).
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.”
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).
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.
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.
Documents OS 8-10
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