United States District Court, District of Columbia
JOSHUA L. REINHARD, Plaintiff,
DEPARTMENT OF HOMELAND SECURITY, Defendant.
E. BOASBERG UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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.
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.
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).
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)).
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.
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)).
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).
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
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.
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.)
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.
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.
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
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).
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.
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
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 ...