Reinhard v. Department of Homeland Security

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE.

         The United States Coast Guard fired Plaintiff Joshua Reinhard following a barrage of misconduct allegations. Reinhard wishes to reverse this course. Believing that he was not given a fair shake, he has spent the last three years fighting the Coast Guard's administrative separation. In the present litigation, which is but a cog in the wheel of this broader dispute, Plaintiff has turned to a tool often employed by those vexed by government action: the Freedom of Information Act. Reinhard filed two requests with Defendant Department of Homeland Security - the federal agency that houses the Coast Guard - seeking records concerning his termination. These documents, he hopes, will reveal material beneficial to his appeal. In response, DHS turned over more than one thousand pages of records. In addition to this trove, however, it withheld some documents under FOIA's exemption for information shielded by litigation privileges. Plaintiff challenges those withholdings in this suit.

         Both parties have now filed Motions for Summary Judgment. Concluding that the Government has met its burden as to many, but not all, of its withholdings, the Court will grant in part in and deny in part both DHS's Motion for Summary Judgment and Reinhard's Cross-Motion.

         I. Background

         The factual path that led to Reinhard's FOIA requests bears little on the legal issue at hand. The Court will thus skip this setup and proceed to details of his requests. Readers curious to learn the circumstances behind his suit are directed to the opinion, issued by another court in this district, rebuffing Plaintiffs attempt to enjoin his separation from the military. See Reinhard v. Johnson, 209 F.Supp.3d 207, 210-13 (D.D.C. 2016).

         Reinhard's first FOIA request went straight to the point. He sought from DHS the release of “all communication and correspondence . . . amongst the command regarding his administrative separation.” See ECF No. 2 (Compl.), ¶ 6. A few months later, Plaintiff followed up with a more targeted inquiry, this time seeking “the command climate survey conducted in or about January 2016 at Eighth Coast Guard District, New Orleans, Louisiana and into the climate under Captain Rush.” Id, ¶ 13. After DHS did not satisfactorily respond within the statutorily prescribed timeframe, Reinhard filed this suit. Id, ¶¶ 9-10, 17-18.

         The Coast Guard eventually located numerous records responsive to both requests. (Unless the difference holds some significance, the Court will use the terms Defendant, the Government, DHS, and the Coast Guard interchangeably in this Opinion.) It turned over to Plaintiff a total of 197 documents containing 1, 069 pages of material. See ECF No. 8 (Def MSJ), Attach. 4 (First Declaration of Jesse L. Houck), ¶ C.4. Defendant, however, redacted in part several documents and withheld others in full largely pursuant to FOIA Exemption 5's protection for inter- or intra-agency records shielded by a litigation privilege. Id, Exh. E (First Vaughn Index) at 1-6. Others it withheld or redacted under Exemption 6's shield for private personal information and 7(C)'s protection for private law-enforcement records. Id at 4; First Houck Decl., ¶ C.4. Reinhard does not challenge documents withheld under these latter two exemptions, instead saving his fire for the Coast Guard's invocation of Exemption 5. See ECF No. 11 (Pl. MSJ & Opp.) at 4. Following Plaintiff s Motion for Summary Judgment, the Government released several more documents, obviating the Court's need to wade into those waters. See ECF No. 15 (Def Opp. & Reply), Attach. 1 (Second Declaration of Jesse L. Houck), ¶ 5.

         After the parties completed briefing in this case, this Court ordered - as it often does in these circumstances - that DHS provide unredacted copies of the disputed records in camera. See Minute Order of Mar. 5, 2019. Having reviewed these records, the Court is primed to resolve the parties' dispute. II. Legal Standard Summary judgment may be granted if “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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to construe the conflicting evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

         FOIA cases typically and appropriately are decided on motions for summary judgment, and the agency bears the ultimate burden of proof. See Defenders of Wildlife v. Border Patrol 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73 (D.D.C. 2007); see also Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989). And “[u]nlike the review of other agency action[, ] . . . the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they describe “the documents and 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). 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.'” Safe Card Servs., Inc. v. SEC, 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)).

         III. Analysis

         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) (quotation marks and citation omitted). In doing so, FOIA helps “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted). The statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds. See id § 552(a)(4)(B); Reporters Comm., 489 U.S. at 754-55.

         The Government need not, however, turn over requested information that falls into one of nine statutorily created exemptions from FOIA's broad directive. See 5 U.S.C. § 552(b)(1)-(9). These exemptions must be “narrowly construed.” Rose, 425 U.S. at 361. That is so because courts must “[a]t all times . . . bear in mind that FOIA mandates a ‘strong presumption in favor of disclosure.'” Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991)).

         A. Exemption 5

         Only one exemption is at issue here: Exemption 5. This applies to “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). Withholdings are restricted to “those documents, and only those documents, normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975); see also United States v. Weber Aircraft Corp., 465 U.S. 792, 798-99 (1984). In contrast to certain disclosures in that context, the needs of a particular plaintiff are irrelevant to a court's determination of whether a particular communication is exempt from disclosure under Exemption 5. See Martin v. Office of Special Counsel Merit Sys. Prot. Bd., 819 F.2d 1181, 1184 (D.C. Cir. 1987) (citing Sears, Roebuck & Co., 421 U.S. at 149 & n.16).

         Exemption 5 encompasses three distinct components - namely, the deliberative-process privilege (sometimes referred to as “executive privilege”), the attorney-client privilege, and the attorney-work-product privilege. See Am. Immigration Council v. U.S. Dep't of Homeland Sec. 905 F.Supp.2d 206, 216 (D.D.C. 2012). Narrowed over the course of briefing, the parties' dispute concerns only the first two privileges. See Second Houck Decl., ¶ 8. The Court will begin with the documents for which DHS invokes the deliberative-process privilege, before turning to those for which the attorney-client privilege is at issue. In this case, these categories of documents do not overlap.

         1. Deliberative-Process Privilege

         The deliberative-process privilege shields internal agency “advisory opinions, recommendations and deliberations” in order to “protect[] the decision making processes of government agencies.” Sears, Roebuck & Co., 421 U.S. at 150 (citations omitted). To qualify under this privilege, a record must meet two requirements. First, it must be predecisional - i.e., “generated before the adoption of an agency policy.” Judicial Watch, Inc. v. U.S. Dep't of Def., 847 F.3d 735, 739 (D.C. Cir. 2017) (citation omitted). Second, a record must be deliberative, meaning that it “reflect[s] the give-and-take of the consultative process.” Id. (citation omitted). “A document that does nothing more than explain an existing policy cannot be considered deliberative.” Public Citizen, Inc. v. OMB, 598 F.3d 865, 876 (D.C. Cir. 2010).

         This privilege, Defendant contends, protects several documents responsive to Plaintiff's FOIA request. Reinhard does not see things the same way. To tee up this issue, the Court will briefly describe the records disputed here and then turn to the two-step inquiry that this privilege demands. (The Court will follow the parties' lead and refer to the documents by the “USCG” number referenced in the Vaughn Index and stamped on the bottom-right corner of each in camera record.)

         Two documents are preliminary investigative reports. The first centers around Reinhard's conduct. After hearing that Plaintiff may have filed a retaliatory complaint against another servicemember, the Coast Guard convened a civil-rights investigation. See ECF No. 15 (Def. Reply), Attach. 1 (Declaration of Jesse L. Houck), Exh. A (Updated Vaughn Index) at 1. It tasked an administrative investigations officer with looking at the allegation. The document at issue - titled “Preliminary Investigative Report Retaliation / Anti-Harassment Hate Incident Complaint” and dated August 28, 2015 - reveals that officer's findings and recommendations. Id (USCG 10-24). The Coast Guard attests that this preliminary report predates and does not reflect the Coast Guard's final action on the issue (presumably, Plaintiffs termination), which is documented in a separate memo. Id

         The second report documents a command-climate investigation dated April 25, 2016, and appears to be the record Plaintiff referenced in his second FOIA request. Id at 5 (USCG 513-32, 540-97, 695, 743-75); see also First Vaughn Index at 5-6. Like the first incident, the Coast Guard asked an administrative officer - here, Captain Orin E. Rush - to investigate allegations that had percolated up from its members. See Updated Vaughn Index at 5. This time, the concerns centered around a poor climate at the Marine Safety Unit Morgan City, which is a unit of Sector New Orleans in the Coast Guard's Eighth District. Id This report is the fruit of that investigation. Id The Coast Guard attests, however, that it is not reflective of the final agency action on this score. Rather, it says that the Coast Guard documented its ultimate response to the allegations of a negative command climate in a separate agency memo. Id Although this investigation appears somewhat tangential to Reinhard's actual termination, he seems to believe that it contains information relevant to his separation. See ECF No. 8, Attach 2. (Def. Statement of Facts) at 6 (noting that Plaintiffs requests seek information related to his discharge); ECF No. 16 (Pl. Reply) at 1-2 (accepting as true and incorporating Defendant's Statement of Facts). DHS contends that, while it withheld substantial portions, it released “[a]ll reasonably segregable, non-exempt information” contained in this report. See Updated Vaughn Index at 5.

         Next - and finally - are two email threads. The first is an email from one member of the Coast Guard to another, which forwards a separate email. Id at 1 (USCG 79). The topic centers on allegations of improper behavior by Plaintiff - namely, that “Chief Reinhard has been gossiping outside of the unit & some of it was about official business.” Id The second email thread concerns Reinhard's administrative-separation proceedings, which were ongoing at the time. Id at 3 (USCG 231, 323-24). This email's title is “Follow-up on Member with 3rd AI.” Id

         a. Predecisional

         The Court has little trouble concluding that all withheld information qualifies as predecisional. Because this showing logically requires that the document at issue predate a decision or policy, an agency can satisfy its burden here if it can “pinpoint” such later “decision or policy to which the document contributed.” Senate of the Commonwealth of PR. v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987) (citation omitted). This route, however, is not the only path up the mountain. Recognizing that not all deliberative discussions culminate in a “single, discrete decision, ” the D.C. Circuit has held that an agency also passes muster by “identifying the decisionmaking process” in which the record played a role. See Access Reports v. Dep't of Justice, 926 F.2d 1192, 1196 (D.C. Cir. 1991); see also Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of the Fed. Reserve Sys., 762 F.Supp.2d 123, 135-136 (D.D.C. 2011) (“[E]ven if an internal discussion does not lead to the adoption of a specific government policy, its protection under Exemption 5 is not foreclosed as long as the document was generated as part of a definable decision-making process.”). Considering how an agency might respond to a media or congressional query, for example, can fall into this latter camp. See Cause of Action Inst. v. U.S. Dep't of Justice, 330 F.Supp.3d 336, 352 (D.D.C. 2018).

         Defendant has satisfied its burden here. As it points out, both investigative reports at issue - one concerning Plaintiffs alleged retaliation and the other probing the command climate - concern and predate the Coast Guard's ultimate action. See Updated Vaughn Index at 1 (retaliation report); id at 5 (command climate report). For both reports, Defendant attests that the Coast Guard issued its final decisions regarding the underlying allegations in later and separate memos, which are “not reflective” of the preliminary reports. Id Although DHS has not said directly whether either of these final agency actions was, in fact, Plaintiffs termination - certainly the response to the command-climate investigation does not appear to be - it need not be so explicit to satisfy its burden. Defendant has identified the relevant decisionmaking process at issue: the manner in which the Coast Guard determined to respond to the issues and allegations that spurred the investigations. Id. at 1, 5. No. more is required at this step. See Access Reports, 926 F.2d at 1196.

         One of the two email chains, similarly, occurs in the context of determining “how to respond to the report of a potential operations security . . . violation by Plaintiff.” Updated Vaughn Index at 1 (USCG 79). The Coast Guard attests that the exchange is antecedent to any final decision regarding its response. Id Along the same lines, the other email thread discusses “whether the Coast Guard would administratively separate Plaintiff.” Id at 3 (USCG 231, 323-24). It thus clearly predates Plaintiffs actual administrative separation. Id DHS has met its burden of demonstrating that each document relates to and precedes either an agency decision or the culmination of a decisionmaking process.

         Plaintiff presents little meaningful opposition here. His only - although repeated -retort is to fault DHS for not tethering each document to a specific final agency action. See Pl. MSJ & Opp. at 7, 8, 10; Pl. Reply at 5 (“Defendant does not clarify what the final agency action is.”). This lands wide of the mark. As explained above, DHS has, in fact, identified a specific final agency action for many of the documents. And for those for which it has only identified a decisionmaking process to which the documents contributed, rather than a specific final action, Plaintiffs assertion runs headlong into the D.C. Circuit's repeated holding that such an explanation suffices. See Access Reports, 926 F.2d at 1196; see also Nat'l Sec. Archive v. CIA,752 F.3d 460, 466 (D.C. Cir. 2014) (similar); Judicial Watch, Inc. v. U.S. Dep't of State, 241 F.Supp.3d 174, 183 ...